President should be independent, impartial, symbol of national unity : Dr. Nihal Jayawickrama

• Parliamentary Council can only make ‘observations’ which the President can ignore
• 19th Amendment restored democracy
• Tendency to regard civil society as an enemy of the state
• Our judiciary has failed to adopt the global standard of judicial ethics

The 20th Amendment to the Constitution has drawn severe criticisms from various elements including some who have been batting for the pro-government league for a long time. A whopping 39 petitions were filed against its enactment, which were taken up by the Supreme Court and the hearings concluded on October 5. The Speaker is due to announce the determination of the Supreme Court on October 20. When the 19th Amendment was being drafted a Committee was appointed to seek public opinions but this time around, everything seems to be happening on a hush-hush note.   

Some of the major concerns include abolishment of independent commissions and the question of Presidential immunity. “How can a commission be independent if its members are appointed by the President, and can be removed by the President?” questions Dr. Nihal Jayawickrama, distinguished jurist and former Secretary to the Ministry of Justice in an interview with the Daily Mirror.   

Excerpts :   

QYou say the Constitutional Council was an ineffective body. How could it have been strengthened? 

Until the establishment of the Constitutional Council, the power to make appointments to the appellate courts and other high offices, and to the independent commissions was vested solely in the President. After the 19th Amendment the President could only appoint persons recommended by the Constitutional Council as members of the independent commissions. In regard to other appointments, the President’s choice had to be approved by the Council. The Council was intended to enable community participation in these appointment processes. Unfortunately, at the committee stage, Parliament decided that the 10-member Council should consist of seven MPs instead of seven persons from the community who had no political affiliations. For five years, the Council failed to formulate procedures for the performance of its duties and functions as required by the Constitution. Should they not interview a person before either recommending or approving his appointment? Should they not examine his credentials and be satisfied that he is suitable. The Council can be strengthened by restoring the membership that was originally proposed, and by formulating rules for the transaction of business at its meetings, including the eligibility criteria for the different appointments.   

19A did not weaken the state. It restored democracy, established accountability, and strengthened the independence of those institutions whose independence is vital for the health of the state

QWill a separate Parliamentary Council serve the same purpose given the fact that the President will be free to appoint anybody?

The Parliamentary Council can only make “observations” which the President is free to ignore. Of what use is it?   

QThose who criticise the 19th Amendment have frowned upon the role of civil society and NGOs and blame them for ‘weakening the state’. Have we given too much space for the civil society and NGOs when looking at past experiences? 

The 19th Amendment did not weaken the state. It restored democracy, established accountability, and strengthened the independence of those institutions whose independence is vital for the health of the state. There is a tendency in this country to regard civil society as the enemy of the state. It is like President Trump saying that the media is the enemy of the state. Civil society is everyone other than those holding public office. They are the professionals, the media, the workers, the priests, the academic community,the students, and many more. They gain strength when they organize themselves into a collective such as trade unions. They represent interest groups within the community. They are the non-governmental sector of society. The UN has accorded NGOs consultative status. In 1989, I represented the International Commission of Jurists when, together with colleagues from Hong Kong, we secured the first ever resolution of the UN Sub-Commission on Human Rights against a member state of the Security Council.That required the UN Secretary-General to prepare and submit a report on the events that took place at Tiananmen Square in June of that year. Government representatives were not really interested in pursuing that matter. 

 
QThe functioning of independent commissions is also challenged with the 20th Amendment. How do you 
see this? 

How can a commission be independent if its members are appointed by the President, and can be removed by the President? How independent will the Election Commission be, or the Public Service Commission, if its members are handpicked by the President, who is a politician, and may be removed by him at any time. At present, the Judicial Service Commission which is responsible for appointment, transfer, and disciplinary control of judges of original courts consists of the Chief Justice and the next two senior Judges of the Supreme Court. The 20th Amendment Bill will enable the President to pick any two Judges to serve on that Commission and remove them at any time. That Commission thus becomes politicized, and through it, the judiciary as well.   

QJudicial independence too would be challenged where President could appoint as well as remove judges if he wishes to. What are your comments? 

What incentive for independence and impartiality is offered to a judge when his/her appointment and promotion is entirely dependent on a politician? To make matters worse, when the government has a two-third majority in Parliament, the fear of impeachment must be ever-present in the judge’s mind. The Sri Lankan Government and the Judiciary have chosen to ignore tremendous developments that have taken place globally during the past two decades. For example, we are one of the few countries in the world in which our judiciary has failed to adopt the global standard of judicial ethics – the Bangalore Principles of Judicial Conduct which was endorsed by the UN General Assembly as far back as 2006.Our judicial appointment process is from the mid-1950s. It is now universally recognized that members of the judiciary and members of the community should together be involved in the selection of candidates for judicial office, and that the process should be open and transparent. A Council for the Judiciary with mixed judicial and lay representation, and no political involvement, is now a common feature in most countries.   

QHow does Presidential immunity challenge the country’s democracy? 

Immunity has traditionally been accorded to the King. There is no such concept in a Republic. Every office holder in a republic is accountable to the people, and that accountability is secured through the legislature and the judiciary. Every official and private act of a public functionary, including that of the Head of State, is subject to scrutiny by the courts.   

QIf the President also holds ministerial portfolios such as Defence and Mahaweli Authority, does this immunity also extend to his capacity as a Minister?

Under the Constitution as amended in 2015, the President cannot hold any ministerial portfolio. An unfortunate personal exception was made for President Sirisena, and we now know that the consequences of that ill-advised concession were tragic. Of course, presidential immunity does not extend to his ministerial functions. 

 
There is a popular belief in certain quarters that the President should be the Minister of Defence, especially since he is also the Commander-in-Chief. This is a misconception. In a democratic country, the Head of State, whether elected or appointed, is also designated as the Commander-in-Chief. In constitutional practice, this is to signify civilian control of the armed forces. For instance, the Queen of the United Kingdom is the Commander-in-Chief. So is the President of the Republic of India. So was the Governor-General of Ceylon from 1948 to 1972, and President Gopallawa thereafter. None of them ever demanded to be appointed Minister of Defence. Why would the Head of State want to sit in Parliament, answer questions from the Opposition on matters relating to the departments assigned to the Defence Ministry, move supplementary estimates for those departments, and go before parliamentary committees to respond on matters such as expenditure and promotions?   

QGiving powers to the Parliament is one way of being fair by the people. If 20A is enacted, it will make the Parliament useless. What would be the repercussions that elected representatives would face? 

If the 20th Amendment Bill is enacted, and the President demands from the elected Members of Parliament undated letters of resignation as President J.R.Jayewardene did, can they decline to provide such letters? If the 20th Amendment Bill is enacted, the President may, at any time, dismiss the Prime Minister and any or all of the Ministers. He can assign to himself all the subjects and functions of government. If Parliament dares to reject his appropriation bill, he can dissolve Parliament. If he wishes to, he can prorogue Parliament any number of times, sending members back home. These are the consequences of bringing the Prime Minister and the Cabinet of Ministers, all of whom are elected Members of Parliament, under the yoke of the President. The solution is to retain the office of President as it is today – that is, as a constitutional Head of State –and devise a more realistic method of electing the President, such as by an electoral college as in India. The government of the country should be the responsibility of the Prime Minister and the Cabinet of Ministers, all of whom should be responsible and accountable to Parliament. The President should be the independent, impartial, symbol of national unity. We have had thirty years’ experience of such an office.