20A will demolish democratic structures erected by 19A, argues CPA

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President Gotabaya Rajapaksa - ISHARA S. KODIKARA / AFP
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By P. K. Balachandran

COLOMBO – The Colombo-based advocacy group, Centre for Policy Alternatives (CPA), has lashed out at the Gotabaya Rajapaksa government’s bid to enact the 20th Constitutional Amendment, which, it says, is “regressive”.

In its report released last week, the CPA said the proposed amendment rolls back democratic reforms introduced by the 19th Amendment of 2015 by giving unfettered executive power to the President, institutionalized by the 18th Amendment in 2010.

“The principal changes proposed by the 20A Bill seek to remove the checks and balances on the Executive Presidency. In particular, it abolishes the binding limitations on presidential powers in relation to key appointments to independent institutions through the pluralistic and deliberative process of the Constitutional Council (CC),” the report notes, observing the CC’s replacement, the Parliamentary Council (PC), is a mere rubber stamp of the executive, with no genuine deliberative role envisaged for its members.

It also notes the 20 A bill gives sweeping powers to the President to appoint individuals to key institutions, and with it, politicizing institutions that are meant to function independently of the political executive and for the benefit of citizens.

“CPA notes that the opportunity for citizens to challenge the executive actions of the President through fundamental rights applications has been removed, suggesting that the President is above the law. The checks on presidential power within the executive are abolished by the removal of the requirement of the Prime Minister’s advice for the appointment and dismissal of Cabinet and other Ministers,” it further observes, pointing out the appointment, and particularly the dismissal, of the Prime Minister are no longer dependent on the confidence of Parliament but at the discretion of the President.

The report also notes that Parliament is dis-empowered against the executive by the restoration of the President’s power to dissolve Parliament at will at any time after the first year of its term, cautioning the fundamental changes to the constitutional separation and balance of powers will seriously undermine the accountability of government, and pose a significant challenge to existing democratic norms embodied in the Constitution.

“The erosion of constitutional checks and balances will also adversely impact on the efficient, effective, and transparent use of public funds,” the report warns, maintaining, “The democratic mandate received by the government in August 2020 must be recognized. However, that mandate must not be misconceived as a blank cheque for the government to do as it pleases.”

The Parliamentary Council (PC), unlike the existing Constitutional Council (CC), will be composed only of MPs who will naturally owe allegiance to the government and the main opposition party. There is no representation of other political parties in Parliament in the PC. Unlike in the 19A, there is no provision in the 20A bill to appoint persons of eminence and integrity who are not members of any political party.

Under 19A, nominations made to the CC by the Prime Minister and the Leader of the Opposition are required to be approved by Parliament. 19A also says the Prime Minister and the Leader of the Opposition “shall” consult the leaders of political parties and independent groups represented in parliament on this matter. But there is no such requirement in the 20A bill.

The proposed 20A allows the President to remove the Prime Minister at any time. The President can also remove the two MPs nominated by the Prime Minister and the Leader of the Opposition respectively “at any time for any reason”.

19 A says members to the Independent Commissions can be appointed by the President only on the recommendation of the Constitutional Council. But the 20A bill says in making the appointments the President need only to seek the “observations” of the Parliamentary Council.

“There is no obligation on the part of the President to even consider the PC’s observations. Therefore, the Parliamentary Council is much weaker than the Constitutional Council. The President’s power to make appointments to key positions in the public service is unfettered,” the CPA notes.

As in the case of appointments, removal is also at the discretion of the President. The President does not even need to obtain the “observations” of the Parliamentary Council and can remove persons at will.

The Inspector-General of Police (IGP) has been removed from the list of offices referred to in Part I and Part II of Schedule in Article 41A. “This results in a lacuna in the appointment of the Inspector-General of Police as the Constitution does not provide for this appointment,” the report points out.

There is also a time bar on the exertions of the Parliamentary Council. The 20A  bil lsays that when the President seeks the observations of the Council, he shall require the Council to convey through the Speaker the observations of the Council, on the persons proposed by him for appointments, within a period of one week from the date of seeking such observations. If the Council fails to communicate its observations to him within the period specified, the President shall forthwith proceed to make the appointments. In the 19A, there is a quorum for the meetings of the CC. But in the 20A bill, there is no quorum for the PC. A minority can claim to voice the will of the PC.

19A stipulates when determining the appointment of ministers, the President shall act on the advice of the Prime Minister. But under the proposed 20A the President does not need to consult the Prime Minister.

The CPA notes while the 19A does not have a provision for the President to assign a ministry to himself, under the proposed 20A the President has to power to assign to himself any subject or function. Additionally he shall be in charge of any subject or function which has not been assigned to any minister.

The CPA points out that 19 A says explicitly that the Cabinet of Ministers functioning while parliament is dissolved, until the conclusion of the general election, shall comply with the criteria set by the Commissioner of Elections and shall not cause any undue influence on the general election. But this express provision has been removed under the proposed 20A.

The 20A bill also has provision for the President himself to take over ministerial functions until the conclusion of the parliamentary elections. Under 20A the President will have the power to dissolve Parliament at any time after one year from the date of a general election, except when Parliament by resolution, carried by a simple majority, decides to request the President to dissolve parliament. Under 19A, two-thirds majority will be required for a snap dissolution. But under 20A, a simple majority will do.

Under the 20A bill, dual citizens are not disqualified from contesting parliamentary and Presidential elections. The proposed Amendment allows the President to refer to the Supreme Court directly, any Bill certified by the Cabinet of Ministers as “urgent in the national interest”. This provision was absent in 19A.

The Supreme Court will be tasked to decide on the constitutionality of the urgent bill within 24 hours or 72 hours depending on the instructions of the President. There is no requirement to gazette “urgent bills”, which means that citizens might not even know the contents of an urgent Bill before it is passed by Parliament.

The powers of the Independent Commissions have been drastically pruned. The National Police Commission, for example, will no longer have the power of appointment, promotion, transfer, disciplinary control and dismissal of police officers. It can only investigate complaints from members of the public or any aggrieved person against a police officer or the police force, and shall provide redress in accordance with the provisions of any law enacted by parliament.

There is provision for a Judicial Service Commission consisting of the Chief Justice and two other Judges of the Supreme Court appointed by the President. The President may appoint and remove such members without the approval by the Parliamentary Council.

“This gives unfettered power to the President over the Judicial Service Commission, which would undermine the independence of the Commission and in turn the independence of the Judiciary,” the CPA says.

Under the 20A bill, members of the Public Service Commission will be appointed by the President and may be removed by the President without the need for approval by the Parliamentary Council. This would give the President unchecked power over the Commission which in turn would adversely affect its independence,” the CPA points out.

-P K. Balachandran is a senior Colombo-based journalist who in the past two decades, has reported for The Hindustan Times, The New Indian Express and the Economist

 

 

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