Replacing one flawed amendment by another flawed amendment (constitutional reforms of Sri Lanka)

By Sunmanasiri Liyanage

(September 04, 2010, Colombo - Lanka PolityMay be due to the fact that they have to cater to the exigencies of the power hungry and powerful politicians, legal draftsmen/women have oftentimes been careless in drafting legislations, particularly the constitutional amendment bills. This is evident when one has a cursory glance at the drafts of the 13th Amendment and the 17th Amendment to the Constitution. The 17th Amendment was hurriedly passed by the Parliament in 2000 to introduce limited checks and balances on the powers of the executive presidency, especially with regard to making high level appointments like the chief justice, the inspector general of police, and the election commissioner and the appointments to the important commissions. It proposed to set up a constitutional council comprising 10 members, seven of them non-parliamentarians. When the president makes the above mentioned appointments, she/he has to act on the recommendations of the constitutional council.

However, the legislation has left many questions unanswered and the Supreme Court informed Parliament of some of those issues at that time. Partly due to these drawbacks, the 17th Amendment was not properly put into practice, except for a very brief period. However, we have to keep in mind that the main reason why the Constitutional Council was not set up following the enactment of the 17th Amendment was that it intended to restrict the powers of the executive President.

A generation of hypothetical situations would help us understand the practical problems involving the implementation of the 17th Amendment. If the President refuses to appoint the persons who are nominated by the Prime Minister and the leader of the opposition or by the minority parties in parliament or if the President refuses to appoint his/her nominee, setting up of the constitutional council would not take place. Similarly, if the Prime Minister and the leader of the opposition fail to reach a consensual decision once again setting up of the Constitutional Council would be problematic. It appeared that these hypothetical situations were not anticipated by the law makers or legal draftsmen.

One of the objectives of the proposed 18th Amendment to the Constitution is to replace the Constitutional Council by a Parliamentary Council consisting of 5 members, 3 are ex-officio—the Speaker, the Prime Minister and the Leader of the Opposition. The other two members will be separately nominated by the Prime Minister and the Leader of Opposition to include ethnic groups not represented by the three ex-officio members. Of course, unlike the Constitutional Council this body cannot recommend the names of the people for above mentioned positions or to the commissions. The President can seek the observations of the Parliamentary Council in making those appointments. In a way, with the proposed 18th Amendment, the process that was unleashed by the 17th Amendment with regard to the powers of the President is intended to be reversed. In other words, the unrestrained powers of the executive President will be re-established if the 18th Amendment is passed.

Once again we can pose hypothetical or counterfactual questions to see the constitutional coherence of the proposed amendment. Suppose if the leader of the opposition refuses to nominate a member to the Parliamentary Council, can the Parliamentary Council be duly set up? Suppose, the President and the Prime Minister belong to two different parties and the Prime Minister refuses to nominate his candidate, can the Parliamentary Council be set up? Hence what happened to the Constitutional Council would happen to the Parliamentary Council as well making that component of the 18th Amendment inoperative.

Let me now turn to more substantive points. One of the key issues that were raised against the present Constitution has been that it had created a monster in the institution of the executive presidency. Hence, the left in Sri Lanka including the JVP has been campaigning for the abolition of the executive presidential system or at least for introducing checks and balances to reduce the powers of the executive president. At the moment besides almost impossible impeachment procedure specified in Article 38(2), there is no any other constitutional mechanism to question the acts of the executive president. The cases cannot be filed against the President while she/he is in office. The two members of the present Parliament, Vasudeva Nanayakkara and M Sumanthiran know this very well. As the term of the President is not restricted as the 18th Amendment proposes and if the president using his/her official powers gets elected once again, then there is no room for citizens to question his acts.

When the appointment of the election commissioner and the election commission is solely the responsibility of the president under the proposed 18th Amendment, one may justifiably raise the question if the elections can be free and fair. Hence, if the ruling party wants the incumbent president to run for another term, what should be done is to extend the term for three terms by amending the Article 31 (2), not to remove it.

A criticism that was leveled against the 17th Amendment that seems to be quite justifiable is that it takes away the powers of the Parliament and facilitates handing them to so-called independent people. Without spending time on this argument, just accept it as it is. President Rajapaksa always argued that he would like to be a president more accountable to parliament. In this situation, what could have been done was to repeal the 17th Amendment totally and replace it by a separate Amendment making important appointment to above mentioned positions by the President accountable to parliament. This may be done in many ways. I will suggest a simple mechanism without disturbing unnecessarily the existing constitutional framework. The president can make appointments but the appointments are subject to the approval by not less that 60 per cent members of parliament including those not present. By introducing such a mechanism, the important appointment can be made subject to non-partisan parliamentary ratification.

If one conducts a simple survey to ascertain people’s views on constitutional reforms, he or she will for sure find that people would place electoral reforms as the priority number 1. I believe people gave the UPFA closer to a two-thirds majority in parliament primarily because the people in this country are fed up with the electoral system that has been in operation and want it changed. Instead of taking this into consideration, the attempt of the UPFA to present a constitutional amendment that does not reflect either this desire of the people or the promises made by the UPFA at both parliamentary and general elections this year is unacceptable and would produce adverse results not only for the country but also for the UPFA as a coalition. It is not seldom that politicians unwittingly dig their own graves.

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  1. The UK Government is in the process of having a referendum on the subject.

    Sri Lanka and other countries too con consider the proposal.


    Alternative Vote
    The government is committed to holding a referendum on the Alternative Vote (AV).

    AV represents a logical progression from first past the post. Preserving the traditional one member, one constituency, it ensures all MPs have a real mandate while delivering greater choice and eliminating the need for tactical voting.
    What is the Alternative Vote?
    The Alternative Vote (AV) is very much like First-Past-the-Post (FPTP). Like FPTP, it is used to elect representatives for single-member constituencies, except that rather than simply marking one solitary 'X' on the ballot paper, the voter has the chance to rank the candidates on offer.
    The voter thus puts a '1' by their first-preference candidate, and can continue, if they wish, to put a '2' by their second-preference, and so on, until they don't care anymore or they run out of names. In some AV elections, such as most Australian elections, electors are required to rank all candidates.
    If a candidate receives a majority of first-preference votes (more people put them as number one than all the rest combined), then they are elected.
    If no candidate gains a majority on first preferences, then the second-preference votes of the candidate who finished last on the first count are redistributed. This process is repeated until someone gets over 50 per cent.
    The case for AV
    • All MPs would have the support of a majority of their voters. Following the 2010 election 2/3 of MPs lacked majority support, the highest figure in British political history.
    • It retains the same constituencies, meaning no need to redraw boundaries, and no overt erosion of the constituency-MP link.
    • It penalises extremist parties, who are unlikely to gain many second-preference votes.
    • It eliminates the need for tactical voting. Electors can vote for their first-choice candidate without fear of wasting their vote.
    • It encourages candidates to chase second- and third-preferences, which lessens the need for negative campaigning (one doesn't want to alienate the supporters of another candidate whose second preferences one wants) and rewards broad-church policies.


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