Opinion

19a riddled with confusions, complications and contradictions

03 Apr 2015 - {{hitsCtrl.values.hits}}

Former External Affairs Minister Prof. G.L. Peiris said the 19th Amendment to the Constitution is riddled with confusions, contradiction and complications. The former Minister in an interview with ,
said the government should not rush in enacting it, as people are constitutionally entitled to their right to express their views on the Bill.

QWhat is your position regarding the current process for the enactment of constitutional amendments?
The process that is being adopted to enact the 19th Amendment is absolutely unacceptable. It denies the people of their fundamental rights in many ways. From the outset, Sr

i Lanka Freedom Party (SLFP) has made it clear that the Constitutional Bill should not be presented as an Urgent Bill. What we are dealing with is the legislation of the highest possible degree of importance. It is the Constitution of the Republic. It cannot be rushed as an Urgent Bill. People of the country must have the fullest possible opportunity to give their mind to the proposed provisions. There must be a public debate. Universities, professionals, civil society, private sector and all others across the spectrum must have the proper opportunity to discuss these issues. What is now happening?

This Bill was gazetted. Parliament was specially convened on March 24, and the Bill presented by the Prime Minister. Now we have studied the Bill very carefully. That is our duty as Members of Parliament. But, that is not the current Bill. What was presented in Parliament is not the present Bill. It is a different one. Now, there are basic differences between the Bill that has been presented and the current version that was presented to the Supreme Court. That is not end of the story. It is bizarre beyond belief. Yesterday, the Supreme Court began its hearing. There are no fewer than 18 petitions. The Supreme Court began its deliberations yesterday (April 1). I understand that the amendments to the gazetted Bill were presented by the Attorney General while the Counsels were on their feet. The Counsel appearing in these cases did not have the chance of studying the amendments.

Travesty of Constitutional Process

The hearing has started while they were on their feet. Then, there was another set of amendments. There were amendments to the amendments. The Counsels did not have the opportunity of studying the latest version of the Bill before making their submissions. This is a total travesty of constitutional process.

The whole point of not resorting to an Urgent Bill is meant to give the public time. According to Article 121, there has to be an interval of one week within which the public make their representations. How can they do it when they do not have the latest version?

I am not aware of it as an MP, the former Minister of Constitutional Affairs and Emeritus Professor of Law. I am not myself aware of the latest position, not to mention the general public. What was published in the media is not the current version. Now, the public has no opportunity of presenting their views on the current bill. There are major differences. If one is talking about fundamental rights and strengthening the democratic institutions, this is the exact opposite of it. People are denied of expressing their views on a constitutional bill that will probably govern them for many generations. It is being done in the most haphazard manner.

"Now, the public has no opportunity of presenting their views on the current bill. There are major differences. If one is talking about fundamental rights and strengthening the democratic institutions, this is the exact opposite of it. People are denied of expressing their views on a constitutional bill that will probably govern them for many generations"

QWhy do you say that there is an infringement of constitutional process?
There is another aspect of it which is exceedingly strange. There is a clear difference between the ordinary exercise of constitutional jurisdiction by the Supreme Court under Article 121 and the special exercise of constitutional jurisdiction in respect of urgent bills. That is governed by Article 122. Under Article 122, the Supreme Court is required to make its determination within 24 hours, and in any case, within three days if the President allows that.

But, under Article 121, the Court can take up to three weeks. There are grave constitutional consequences involved. The Court must have the opportunity to consider these issues in depth and meticulously. Sub Article 2 of Article 121 says that the bill cannot be taken in Parliament until the determination of the Supreme Court has been made, or the expiration of period of three weeks from the date of such reference or petition, whichever occurs first’. It means Parliament cannot enact it into law until the Supreme Court determination is received, or the three weeks have lapsed. Now, I received yesterday the agenda for the next sitting week. That is till April 10. The vote is scheduled at 6.00 pm on April 10. This is going to be debated on April 9 and 10. The court is entitled to take three weeks. Then, how can we make the assumption that we will be in a position to debate it and conclude the whole matter when the law gives the Supreme Court up to three weeks’ time?

In this manner, we are reducing to zero the difference between an Urgent Bill and a Regular Bill. How can the Court be rushed in this way by Parliament fixing a date to debate and pass?
Is that right?

"The concept paper says the President shall always act on the advice of Prime Minister. That was strongly objected to by several representatives of political parties. SLFP also objected to it"

QIn your view, what are the consequences of it?
The public has no clue. The MPs have no clue. The counsels appearing in the case have no clue when they are on their feet. Documents were thrusted upon them. That was also not the final one. Another set of amendments were given to them while the case was being argued.

13th Amendment enacted in haste, problems thrown up still unresolved

See what has happened when things were done in this manner in the past. Now, you are aware of the history of the 13th Amendment. When it was tested for its constitutionality, the Supreme Court was split down the middle. But, there were only four judges led by Chief Justice Sarvananda who upheld the 13th Amendment. Five judges held, in that form, it contravenes Article 2 of the Constitution. One judge Palinda Ranasinghe impugned certain provisions. His remarks were made use of by then Attorney General Shiva Pasupathi to draft certain amendments to make the bill consistent with the Constitution. We are still paying for the haste with which it was done. The problems thrown up by that exercise are still unresolved. That has become a legacy. Now we are doing something worse.

QAre you saying that the present Constitutional Bill is much worse than the 13th Amendment?
I mean the process. Everything is being done secretly. It is done in a furtive manner without exposure or scrutiny by the public or MPs. That is certainly no way for drafting a Constitutional Bill.

QYet, what are your views on the contents of the Bill?
The way this was done is unbelievable. It was started with the concept paper. It was discussed by the leaders of political parties. The substance of that concept paper came under criticism. There is no time to go into different components of it. There is one major example. The concept paper says the President shall always act on the advice of the Prime Minister. That was strongly objected to by several representatives of political parties. SLFP also objected to it. Then, it was omitted from the gazette published and presented to Parliament. It has now found its way back. Yesterday, the amendments presented in the Supreme Court have brought that again. It was in. It was out, and now it is back again.

Process violates Constitution

My position is that everything that has been done is in violation of the spirit of Sri Lanka Constitution basically. It is because the public must be given the opportunity to express their views on the current draft. We do not know whether it will undergo any more changes. Anything is possible. The current draft must be placed before the public. Before that happens, is it right for Parliament to take up that matter and dispose of the entire exercise within a matter of five or six days?

The whole problem here is that there is so much confusion. Before you draft a Constitution, you must make up your mind on what you want to put in. It is useless blaming the Draftsman. The substance or the content must be agreed upon. In the gazetted version, there is an amendment to Article 30, Sub Article 1. It says there shall be a President of the Republic of Sri Lanka who is the Head of State, the Head of Executive, and of the Government, and the Commander in Chief of Armed Forces. According to it, the President is the Head of the Executive and the Government. But, furthermore, there is a provision. That is Article 42, Sub Article 3. It says the Prime Minister shall be the Head of Cabinet of Ministers.

Bill contains contradictory provisions

There is a clear contradiction between these two. How can you have two contradictory provisions incorporated into the Constitution?

They are incompatible with each other. The government is even unable to make up its mind on such an important issue. The solution proposed to pass it is in complete silence. Nothing is said about the Head of Government. Ducking issues is not the solution. The Constitution drafted in this manner will not stand the test of time. It will simply give rise to more and more problems. There must be clarity on mind, and sincerity of purpose.

What we have here is confusion worst confounded. The reality is that there are so may competing points that cannot be reconciled with each other. At one end of the spectrum, there is one view that the President must retain some significant powers. Everybody agrees that the Presidential powers must be reduced.
The amplitude of presidential powers in the present Constitution is unacceptable. It has a chilling effect on other democratic institutions. There is broad consensus that the immunity provision must be drastically changed. There is broad consensus that the President’s arbitrary power on dissolution of Parliament must be changed. There is also broad consensus on changing the President’s unbridled power of appointing secretaries to the ministries.

But, on other matters, has the President to be governed by the Prime Minister on all matters? The final draft appears to say that the President is bound by the advice of Prime Minister. If he disagrees, he can raise the matter. But, in the final analysis, he cannot make up his own mind. There is strong objection to that position. There is also a very strong view that the President must retain the essential power of intervening in situations where the provincial administrations cannot be carried on in accordance with the provisions of the Constitution. These are some of the extraordinary powers the President has under the 13th Amendment.

There are strong views that these powers must be retained for the sovereignty and territorial integrity of the country. But, the blanket provision that the President shall always act on the advice of Prime Minister is in conflict with that position.

At the other end, there is also a view that the presidency should be abolished altogether. Then, it is argued that if the President
has hardly any power, why there is a presidential election.

There are further complications arising from the transitional provisions. The transitional provisions have the effect that President Maitripala Sirisena, during his tenure, can hold three designated ministries. That is Defence, Mahaweli Development and Environment. But, the provision says that even that requires the concurrence of the Prime Minister. These provisions are only for President Sirisena’s tenure. Then, if the Prime Minister is the Head of Cabinet, the President cannot attend Cabinet meetings. He can only go when matters related to these three ministries are discussed.

Opinion

19a riddled with confusions, complications and contradictions

Travesty of Constitutional Process

"The concept paper says the President shall always act on the advice of Prime Minister. That was strongly objected to by several representatives of political parties. SLFP also objected to it"

13th Amendment enacted in haste, problems thrown up still unresolved

Process violates Constitution

Bill contains contradictory provisions

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