Political events in the recent past have tried and tested the country’s separation of the power among the main three pillars of governance and the Supremacy of the Constitution.
The 19th Amendment was introduced in 2015 reinstating some of the independent mechanisms that were taken away by the 18th Amendment to the Constitution. It is imperative to study as to how well the law of the country was upheld and how well the law in itself was sufficient to uphold democracy in the country. The main objective of the 19th Amendment was to make it Parliament centered legislation. Important powers such as the dissolution of Parliament which were with the President were later taken away. It retained the balance of power between Parliament and the President.
Critiques of the 19th Amendment claimed that the law has been loosely drafted and is full of ambiguity. Rebutting the claim, saying that the court decision clears it out, a legal figure involved in the drafting of the law said that however, the spirit of it may not have been retained by the time the final product was reached at since changes were made to the legislation from the outset the the drafting.
“If someone is to say that the need to go before the court came up due to the fact that it was not properly drafted. Then, one can say that all these fundamental rights cases are filed because the law is not clear. Court intervenes because the people don’t respect the law. It’s not a question about interpretation,” he said. Another prominent legal luminary said the drafted law could not be identified as its best owing to partisan drafting.
“A person will only look at what is helpful to you and your party. In that way, the 1972 Constitution was better drafted from the point of view of drafting and clarity, much better than the 1978 Constitution. The 19th Amendment was a political amendment. Constitutions are meant to be nations lifetime and valid for all times,” he said. He said that the purpose of a ‘National Government’ arose because neither party had a majority. “Otherwise there is no need for a national government, “he said.
Citing countries, such as Greece, Italy and Germany, he said that most countries would opt for coalition governments and work together on national principles.
“When the concept of national government comes in, you are buying and selling people. Although there are a large number of amendments in the Indian Constitution, they were policy driven amendments. Here the policy behind the national government is increasing the number of ministers. Constitution drafting must consult the interest of the country,” he said.
Following are some of the opinions by legal luminaries on how well the 19th Amendment upheld democracy in the country.
Role of the majority undermined -Manohara de Silva, Attorney-at-Law (PC)
One of the main things the 19th Amendment brought about was the reintroduction of the Constitutional Council for appointing high posts and what they call as ‘independent commissions’.
There are 10 members in the Constitutional Council (CC) of which the Speaker is the head. Only he has a decisive vote. Out of other nine members, two are the Prime Minister and the Opposition Leader. They together appoint other five members. One person is appointed by the President and others appointed by minority parties. Representatives of minority parties are made by the agreement of all smaller parties, but with regard to the two major parties, the Prime Minister and the Opposition Leader need not consult members of their parties. The opinion of the Members of Parliament is not considered in selecting people to the commissions and high posts.
The leaders of the party select representatives to the Constitutional Council based on the popularity and not on qualification. The majority community is left out of the decision-making process. That is deliberate.
Dr Jayampathi Wickremarathne (PC) recently said in Parliament that the Tamils believe that the Presidential power is a power exercised by the Sinhala Buddhist. The thinking behind these people is to see that the Sinhala Buddhists are sidelined. Seventy six percent of the population is Sinhala Buddhist. We cannot forget their part.
The purpose was to see that they don’t have a say. The supporters of the 19th Amendment manipulated it to such an extent that they brought various arguments. Sampanthan is still not giving up. He is not leaving the official residence of the Opposition Leader. This is because, when the Chief Justice, judges of the Supreme Court and the Court of Appeal and the Inspector General of Police and the Attorney General are appointed, they want to see that the majority voice is kept out. The entire process was manipulated. None of these persons who speaks of democracy says that he is not entitled to the post. According to the Parliamentary tradition, it is the leader of the shadow Cabinet who should be the Opposition Leader.
How can MP Sampanthan claim to be the leader of the shadow Cabinet with mere 16 members of Parliament?
There are many similar examples of downplaying the role of the majority. That is why without any shame Sampanthan is holding on to the post of the Opposition Leader, and why the 19th Amendment was drafted.
Constitution is supreme -K. Kanag-Isvaran, Attorney-at-Law (PC)
In the absence of rule of law during the past 50 odd days, if we start with the dissolution- the power to dissolve Parliament was there, but was it correctly done? Public representatives are elected once every five years democratically.
What does the Constitution provide for the dissolution of Parliament? The franchise of the people is exercised every five years. They delegate their sovereignty to the elected representatives. This is the framework of democracy.
People have elected political representatives to govern the country, but in doing so, they cannot violate the Constitution. That is the principle of Constitutional supremacy. It is the Constitution that is Supreme in Sri Lanka.
Unless Parliament is dissolved according to the law, you are striking at the root of the concept of the people’s sovereignty. We exercise sovereignty according to the Constitution. That’s why we say that good governance depends on the Constitution. We have a democratic rule emanating from the supremacy of the Constitution.
The selection of the Prime Minister breaking the norms and practices of Parliament and working against the Constitution meant that it was a severe threat to the principles of democracy and the system under which we govern ourselves. In that sense, it was a sort of a temporary death knell to the democratic traditions and the Constitutional principles. In these circumstances, democracy was under severe threat and would have continued except for the decision of the Supreme Court, which perhaps was the most important landmark judgement in the country since independence.
No one else had acted against the Constitution in the manner the President did. It is unfortunate that he may have been ill-advised although he said he got the best advice before making the decision.
It is because of the law and the court decision, democracy survives. We are now back to rule of law. I think the hero of this moment was the Supreme Court, principally, the Chief Justice and two other Supreme Court judges.
Move towards Parliamentary democracy J C Weliamuna, Attorney-at-Law (PC)
The argument that there are flaws in the drafting of the 19th Amendment is not a sound argument. It was drafted in the same Constitutional language. There is no issue for someone who can understand the Constitution.
The 19th Amendment pushed the Executive Presidential system to a more Parliamentary system of democracy. This introduced enormous numbers of safeguards against the abuse of power by the Executive. It has also introduced mechanisms of checks and balances which are features of democracy. Overall, this is a progressive legislation democratically. It ultimately benefits the people as against the politicians.
Changes at the last moment Dr Jayampathy Wickremarathne (PC)
When the 19th Amendment was drafted, at the outset, there was a committee appointed by the Cabinet, which was in charge of the drafting, and was headed by the Prime Minister.
Not every lawyer is a draftsman, but every draftsman is a lawyer. We had several retired legal drafts persons who advised and worked closely with the committee, which I was also a part of. The draft approved by the Cabinet was subsequently gazetted and went to the Supreme Court. In my view that was a well-made draft. But it underwent a number of changes.
Firstly, I remember it was a Sunday morning in March 2015 that a meeting was called by the President where all parties, including Opposition parties, were present.
There were objections to various clauses of the draft. Almost all of them came from the opposition. I regret that a few people who are with the government now, who were closer to the President, at that time also spoke against taking away powers of the Presidency.
Under opposition pressure and pressure from people within the government and also by politicians who were with the Rajapaksas and later joined the President’s camp, the changes were made.
They knew that the 19th Amendment empowered ‘Ranil Wickremesinghe, the Prime Minister’ rather than the ‘Prime Minister’. It appeared to me that they had got hold of the President too. Therefore, at that meeting, decisions were taken to make changes to the draft. The Prime Minister was also present at the meeting, but since we did not even have a simple majority, we had to agree to this.
The Cabinet met on the same Sunday at 2 O’clock. We, the Legal Draftsman, Prof. G L Peiris and myself, were told to amend the draft in accordance with the decisions taken in the morning.
They were all ad-hoc decisions. The Legal Draftsman struck off sections and marked the changes. The Cabinet met at 2 O’clock and the changes were made. I was unhappy, but I wasn’t even an MP at the time. These were political decisions.
Then, the matter went to the Supreme Court, further changes were made. This is understandable.
Finally, when the matter was taken up in Parliament, the Opposition demanded more changes. The government had to agree because they depended on the Opposition for a two-thirds majority. This is what contributed to what we have as the 19th Amendment. I agree that due to these changes at various times, one would see that the final product was not the best.
For example, Ministers are appointed on the advice of the Prime Minister. But the President is permitted to change subjects and functions. There are such contradictions in the final version. Had the original 19th Amendment Bill been passed, most of these problems would not have arisen.
Hence, in a way, there is a validity in the criticism. That is because it went through a number of political changes.
Should language of laws be simpler?
Should the language in drafting Constitutions and other laws be of simpler language understood by the laymen was one of the main arguments brought forward during the submissions before the seven-judge bench of the Supreme Court, during its hearing of the Fundamental Rights cases filed against the dissolution of Parliament.
The argument that simpler language should be used in drafting is valid in certain circumstances. However, experts said that in the process of making it understandable or simpler, there are well-established meanings of particular phrases that cannot be completely ignored.
“Constitutional convention is that you have to set it down in writing. That makes it seem complicated. Therefore, you have to make provisos for different circumstances. As much as it complicates, it brings about a sense of certainty. Where there’s a culture where conventions are not followed, you have to put in writing every possible eventuality. That will complicate the law, yet it will create certainty,” a legal expert said.
Too much simplification not possible
Attorney-at-Law K. Kanag Isvaran (PC) said that the problem is all these Parliamentary and other traditions are foreign to us, mostly based on the British. “The British language of enactment was archaic. But, there is a point beyond which you can’t make it any simpler. The main issue is that the law is drafted in English and then translated to Sinhala and Tamil, and therefore, the competency of the person translating the text becomes very important. A literal translation may not capture the nuances and idioms. The substances are the same but the grammar is seen in a different light. Simplification beyond a point is not possible,” he said.
Legislation must be simpler
Dr Jayampathy Wickremarathne (PC), Attorney-at-Law, taking a positive note on adopting simpler language is of the view that it should be done at the correct time.
“I agree that it is high time that we move into simpler language removing all these archaic language that we have obtained from the former legislation and the Soulbury Constitution,” he said.
He said not only the Constitution but criminal and civil legislation must be simpler.
“The world is moving towards a much simpler language. This is not difficult but the problem is we don’t have sufficient legal draftsmen who are capable of looking at things out of the box.