Rule of Law Forum: September 2020

FEATURESThe 20th Amendment:Published 2 days ago on September 21, 2020 Building a future and forgetting the past Continued from Sunday Island (20) by Professor Savitri Goonesekere The Judiciary The judiciary is an important organ of government in a system of Parliamentary democracy, often expressed in the concept that institutions engaged in the administration of justice must be “independent” or free of political interference. Certain measures are incorporated in Constitutions, in a Parliamentary democracy, to ensure that there is no political interference in the matter of appointment and dismissals of judges. The long history of political interference and the experience with the impeachment of Chief Justices after 1978 led to pressures for a system of appointment that would prevent such interference. The 19th Amendment failed to incorporate changes in regard to dismissal of judges of the Supreme Court and the Court of Appeal. However it went back to the norms of the 17th Amendment and created a Constitutional Council that was responsible for oversight on appointments to the Appeal Courts, and also in regard to the two judges (apart from the ex officio Chairman, the Chief Justice), who serve on the Judicial Services Commission. This is the body entrusted with the appointment dismissal and disciplinary control of other judicial officers. The 20th Amendment has repealed the provisions on the Constitutional Council. The President is required to obtain the “observations” of the Parliamentary Council that has replaced the Constitutional Council, but he is not required to consider their views in making appointments to the Supreme Court and Court of Appeal. Appointments are at his complete discretion. He can also (as in the 1978 Constitution) dismiss the two judges who serve on the Judicial Services Commission at his discretion. Both the 19th and 20th Amendment have retained the procedures of impeachment in the 1978 Constitution for dismissals of judges of the highest Appeal Courts. The Attorney General is the chief prosecutor and plays an important role in the administration of justice. The 20th Amendment provides for this appointment to be made at the complete discretion of the President. The oversight of the Constitutional Council that functioned under the 19th Amendment has been removed. The views obtained by the Parliamentary Council that replaced this body are only “observations” and can be ignored by the President. This Council has no oversight responsibility . However the Attorney General’s removal from office will be, as under the 1978 Constitution and the 19th Amendment, according to a specific law that covers this matter- the Removal of Officers Act 2002. This Act provides for a Parliamentary system of investigation and decision making for removal of the Attorney General. High Posts and Public Office The 20th Amendment has repealed the provisions on appointments to designated high posts with the oversight of the Constitutional Council. Appointments to the posts of Commanders of the Armed Forces have been a Presidential prerogative under the 1978 Constitution and the 19th Amendment, and this position has been retained in the 20th Amendment. However the post of Inspector General of Police has been omitted from the high posts coming within the purview of the new Parliamentary Council that has replaced the Constitutional Council. It is not clear how the Inspector General of Police will be appointed, though the Removal of Office Act 2002 determines the procedure for removal and, as in the case of the Attorney General, involves a Parliamentary procedure. The Auditor General’s post is retained as a high post in the Constitution by the 20th Amendment. But he is appointed by the President, and can be removed by him at his discretion, holding office during “good behaviour.” The oversight of the Constitutional Council on his appointment and removal, mandated by the 19th Amendment, has now been removed. This in a context where both the Audit Services Commission and the Procurements Commission established by the 19th Amendment have been abolished by the 20th Amendment. The serious negative implications of these changes for auditing key public institutions have been placed in the public domain by professional associations of auditors. “Independent ” Public Commissions and the 20th Amendment When the 19th Amendment was passed by consensus, it was agreed within and outside Parliament that important public Commissions recognised in the Constitution should be independent of Presidential control. This principle, clearly recognised in the 17th Amendment had been repealed by the 18th Amendment, but was incorporated once again in the 19th Amendment. Consequently the system of appointment and removal was by the President, but subject to the oversight of the Constitutional Council. The 19th Amendment also had detailed provisions aimed at strengthening the work of the Commissions. It established an Auditing Services and Procurement Commission to facilitate oversight, in use of public funds, and financial and management accountability, of important public institutions and offices. It is now stated by those who demonise the 19th Amendment that the Commissions were packed with “NGO Karayas”, because the Constitutional Council was dominated by the same people. This point of view has also been expressed by Prof GL Pieris in public fora and the media (see The Island 13. 9. 2020), and by the Minister of Justice. They should know that this assessment is based on fiction rather than facts. The Constitutional Council had a very strong majority of Parliamentarians, and was chaired by the Speaker. There were only three persons representing “civil society.” At no time were all of them from NGOs. Several had an established national and international reputation, as required by the 19th Amendment, and none of these appointments were objected to in Parliament. The previous Human Rights Commission of Sri Lanka was delisted from regional and international bodies of National Human Rights Commissions, for non-conformity with the Paris Principles that set standards on the method of appointment. Professor GL Pieris and the Minister of Justice must be aware that the Human Rights Commission appointed under the 19th Amendment has received national, regional and international recognition for its work. The 20th Amendment has abolished the Auditing Services Commission and the Procurement Commission. It has also repealed the detailed provisions in the 19th Amendment relating to other Commissions. There are new provisions relating to the Public Service Commission and the National Police Commission. The provisions on the Elections Commission limit their powers to monitor and set guidelines for the conduct of elections. A new provision provides for public complaints against the Police and for redress “according to law”. It is not clear how this procedure will be implemented. The 19th Amendment provided for Presidential appointments and removal of members of the Commissions, but subject to oversight by the Constitutional Council. This procedure has been abolished. The President has full powers in regard to appointments and removal of members of the Commissions referred to in the 20th Amendment. The transitional provisions on the continuity of Commissions and High Post appointments under the 19th Amendment, give the power of removal to the President. This would include removal of members of the current Human Rights Commission referred to above, at the discretion of the President. The drafters of the 20th Amendment have disregarded the standards set by the Paris Principles on National Human Rights Commissions, once again. A Post 20th Amendment Future on Governance The 19th Amendment was to be a temporary initiative for reducing the powers of the Executive Presidency and re-establishing governance with an elected Prime Minister, Cabinet and Parliament, pending the adoption of a new Constitution. The 19th Amendment therefore changed what can be described as “the grund norm” or the foundational principles of the 1978 Constitution. This significant modification to the system of governance was not challenged from within or outside Parliament, or by litigation in the Supreme Court, because there was consensus that the change was good for the governance of the country. The 20th Amendment is a dramatic turn around and has changed the “grund norm” again. The 20th Amendment that was in the public domain in 2019 as a strategy to eliminate the Presidential system of governance, has now emerged as a Constitutional change that will create an even stronger executive Presidency. This time there is no consensus within or outside Parliament. We do not know whether in this context, a 2/3 majority in Parliament and a referendum will be required for the 20th Amendment to become the Constitutional bench mark for the governance of the country in the years to come. We speak of the possibility of drafting a new Constitution to replace the 1978 Constitution, and it is said that the 20th Amendment is an interim measure. But what has been our experience on Constitution making? When the Constitution of South Africa was adopted after a fully participatory drafting process, Nelson Mandela said that “a Constitution is a law that embodies a nation’s aspirations.” Our nation’s aspirations for a new Constitution have never been realised because of adversarial politics, and a failure by politicians to recognise that a Constitution is for the People and not for them. The 19th Amendment could have contributed to good and accountable governance, pending a new Constitution to achieve the agreed objective of dismantling the Presidential system of governance. The two centres “of power” in the executive, created as an interim measure, could have functioned effectively in the nation’s interest, if the President and the Prime Minister had not torn each other apart by their narrow and partisan political agenda. Excellent position papers on key areas of governance were prepared in 2015- 2017, in a consultative manner, and another report was prepared on the basis of public consultations. The Parliamentary drafting process collapsed because our political leadership became enmeshed in adversarial politics. Political interests have once again dominated the drafting of the 20th Amendment. The lack of consensus even within the government is manifested in the fact that no one is taking ownership for drafting the document. The drafting of the 20th Amendment reminds us of the words of a great justice who suggested that it is in the public interest that “laws are not conceived in secrecy and brought forth in obscurity”. Why is there such lack of transparency in regard to the drafting of the 20th Amendment? The public was informed that a Cabinet Sub Committee chaired by Prof GL Pieris, and consisting of the Minister of Justice and others were authorised by the President to draft the 20th Amendment. We are now informed through media that the Justice Minister does not know who prepared the 20 Amendment Bill that has been gazetted to go before Parliament. Another Committee appointed by the Prime Minister also chaired by Professor GL Pieris with the participation of the Minister of Justice and others, will now “report ” on the 20 A. This hardly inspires public confidence in Professor Pieris public statement that Constitutions are not authored by any one, but represents the thinking of the whole government.

The adversarial approach by politicians to Constitution drafting is because of the failure to appreciate that democratic governance which is accountable to the People demands accommodation of both majority and minority points of view in the country, on governance. Giving priority to “sweeping election mandates” and confusing that kind of populism with democracy, denies the responsibility to respect the views of all citizens, on their aspirations for peace and progress. Election majorities are at best temporary phenomenon. The long term interests of the People in accountable governance go beyond electoral politics. We are at a point in history where a large majority of citizens are tired of democracy and want governance to be the sole responsibility of a single popular leader, who commands confidence. They sincerely believe that handing over the country on a “bulath hurulla” to a strong and popular leader will lead Sri Lanka into a glorious future of “kiri and pani”. They are not aware of or have forgotten the lessons of history, and the manner in which a government elected by the people through the Franchise, (the “heart and soul of democracy” as eloquently described by Professor GL Pieris) transforms itself into a totalitarian dictatorship. This is a point of view that is understandable, even if one may disagree with it. What is more difficult to understand is how professionals and academics who should lead the nation towards good governance can describe authoritarian dictatorial exercise of executive power by a single individual, without any checks and balances by other institutions as the quintessential form of “democratic ” governance. This country has experienced and witnessed abuse of political power, in the last few decades. They have seen how governance and the administration of justice has been impacted by abuse of power. Need they be reminded that we have an international record of installing three different Chief Justices in three days- one was “disappeared” from office because of politics, another impeached because of politics, and brought back to office by the successor government for one day, and a third appointed to hold the vacant post. The People have witnessed serious violence and intimidation at elections because of confrontational politics, prosecution or non prosecution of offenders in emblematic cases because of political imperatives , and a person in remand for murder nominated as a candidate for Parliament. Can they be convinced again by Constitutional lawyers speaking eloquently on electronic media, that we have a perfect system of governance and administration of justice, which will be strengthened by going back to a more powerful executive Presidency.? At this critical time it is wise to reflect on what his Lordship HNJ Perera, the last Chief Justice of this country said in the unanimous decision of all the judges of Supreme Court (a Full Bench) in the Dissolution of Parliament case 2018. Citing earlier precedents, and the changes in governance in the 19th Amendment, His Lordship said that ” since 1972 ( when we broke the link to a British sovereign)this country has known no monarch, and the President has not inherited that mantle”. The 20th Amendment is seeking to clothe the President with that mantle. The President and the People must reflect on our national experience on governance, and ask whether a ” monarchy” created by a 20th Amendment to our Constitution, is in the long term interest of the People and the President. Perhaps the then Mahinda Rajapaksea and Professor GL Pieris can reflect on the wise words of their former leader, in 1948 and bring back into governance the values of the 2000 draft Constitution’s system of governance based on parliamentary democracy. They should, with their long experience in governance, give leadership, and save this nation from the crisis and risks inherent in a “single powerful leader” form of governance.