NMSJ’s Proposals on Constitutional Reform—A rejoinder

 

Constituional Miscellany

By Dr. Jayampathy Wickramaratne, President’s Counsel- 2022/01/3

There were several responses to the proposals made by the National Movement for Social Justice (NMSJ) on constitutional reform. Many of them were quite constructive.

Reverting to Parliamentary Government

One critic was unaware of a country that changed its form of government from Presidential to Parliamentary. One does not have to look far for examples; it happened in South Asia itself several times.

Both India and Pakistan inherited a Parliamentary form of government at independence. The 1956 Constitution of Pakistan adopted by the Constitutional Assembly retained the Parliamentary government, but it was abrogated in 1962 following a military coup. After Pakistan’s defeat in the Bangladeshi war, the 1973 Constitution re-established the supremacy of Parliament. With Martial Law being imposed in 1977, several provisions of the Constitution were suspended. In 1985, the 1973 Constitution was revived but with the President retaining the power to appoint the Prime Minister and the Cabinet and to dissolve the legislature. The power of dissolution was taken away by the 13th Amendment enacted in 1997 when Nawaz Sharif was Prime Minister, but that became ineffective following the military takeover by General Musharraf in 1999. The power was formally restored by the 17th Amendment of 2003. In 2010, the 18th Amendment, spearheaded by President Zardari himself,  took away the power of the President to arbitrarily dissolve the legislature, again restoring Parliamentary government.

Bangladesh also adopted a Parliamentary form after independence from Pakistan but adopted a Presidential form in 1975. This was followed by the assassination of President Sheikh Mujibur Rahman and 15 years of military rule that was finally ended in 1990 by millions of people coming onto the streets. In September 1991, Parliament amended the Constitution to revert to a parliamentary form of government. This was overwhelmingly approved by the people at a referendum.

It would not be irrelevant to note that two more of our neighbours opted for Parliamentary government following monarchical rule. The Constitutional Assembly of Nepal opted for a Parliamentary government rejecting the proposals of the Maoists for Presidential government. Bhutan has followed suit with the support of the King himself.

Dr Benjamin Reilly of the Australian National University has shown in his book ‘Government Structure and Electoral Systems’ that of the 93 new democracies that gained independence between 1945 and 1979, all of the 15 countries which remained democratic throughout the 1980s were Parliamentary rather than Presidential systems. On the other hand, all the new presidential democracies from that period suffered some form of breakdown. He shows that, overall, Parliamentary systems have three times the rate of survival of Presidential systems.

 

Independent Commissions

A question that has been raised is whether the system of independent Commissions appointed on the recommendation of the Constitutional Council under the 19th Amendment is compatible with a system of Parliamentary government. The argument is that a parliamentary system, with its in-built safeguards, is more accountable compared to a Presidential system and therefore must be given flexibility.

Independent institutions play an important role in governance not only in Presidential forms of government but also under Parliamentary forms of government.

Under the Soulbury Constitution, which provided for a Parliamentary form, the Public Service Commission was an independent and strong institution. The independence of the public service was destroyed by the 1972 Constitution, which abolished the PSC and gave the Cabinet full control over the public service. The 1978 Constitution continued with this situation. It was changed by the 17th Amendment, which corrected, at least to some extent, a serious problem created under a Parliamentary form and continued under the Executive Presidency.

In India, which has a Parliamentary form of government, the Election Commission is strong and powerful and has ensured that elections are free and fair. But the method of appointment of the Commissioners by the Executive and without any consultative process has been criticised. In its 255th report, the Law Commission of India has recommended that Election Commissioners should be appointed by the President in consultation with a three-member selection committee, consisting of the Prime Minister, the Leader of the Opposition of the Lok Sabha (or the leader of the largest opposition party in the Lok Sabha in terms of numerical strength when there is no recognised Leader of the Opposition) and the Chief Justice of India. A public interest litigation application urging the Supreme Court to give effect to the recommendation is now before the Court.

In the United Kingdom, the Comptroller/Auditor-General is selected jointly by the Prime Minister and the Chair of the Committee on Public Accounts and is subject to ratification by the House of Commons. The Auditor-General of Canada is appointed by the Governor in Council after consultation with the leader of every recognised party in the Senate and House of Commons and approval by the Senate and the House of Commons.

Safeguards against executive dominance in governance are necessary not only in a Presidential form. It is foolhardy to expect that the Prime Minister’s dependence on majority support in Parliament would alone ensure the independence of the judiciary and of the Commissions that need to be independent of political manipulation. That is why the Ven. Maduluwawe Sobitha Nayaka Thera, the founder of the NMSJ, insisted on the re-establishment of the Constitutional Council process even while agitating for the abolition of the Executive Presidency.

One must not forget the experiences under a two-thirds majority in Parliament between 1970 and 1975 and even until 1977 when the United Front had only a simple majority. The infamous ‘Emergency Rule’ in India in the 1970s is yet another example of independent institutions, not excluding the judiciary, succumbing to pressure.

 

A Second Chamber as a substitute for Commissions

The NMSJ has proposed a bicameral legislature. One critic who considers the NMSJ to have ‘poverty of vision’ has suggested that Constitutional Commissions be restricted to areas such as elections, public service, judiciary, audit and anti-corruption and for all other areas to be ‘covered’ by the Second Chamber. This is obviously due to a misconception about the role of a second legislative chamber.

Commissions, whether set up by the Constitution or by law, perform essentially executive functions. Even the former Constitutional Council, although it had its sittings in the precincts of Parliament, performed an executive function by its involvement in the appointment of constitutional functionaries and Commissions prior to formal appointment by the head of the executive.

When the Eighteenth Amendment Bill of 2003 sought to exclude decisions of the Constitutional Council from the fundamental jurisdiction of the Supreme Court, a seven-member Bench of the Court held that the Bill requires approval at a Referendum, stating that the Constitutional Council ‘is part of the Executive and is attributed executive power’.

A Second Chamber, by whatever name called, cannot exercise executive functions. The NMSJ proposed a second chamber of the legislature as an instrument of power-sharing that would also function as a mechanism to rectify possible imbalances of representation in the other house. It would also act as an in-built mechanism against hasty legislation and legislation that may have an adverse effect on the provinces.

 

Language

The NMSJ has proposed that Sinhala and Tamil be recognised as official languages and English as the link language. The criticism that it failed to deal with the language of communication, the language of education, etc., is certainly valid.

The NMSJ must, in refining its proposals in light of the discourse that the proposals generated, go into such details. A good starting point could be the proposals made by the sub-committee on fundamental and language rights of the Constitutional Assembly headed by MP Mahinda Samarasinghe. At the request of the sub-committee, Professor A.M. Navaratne Bandara, who was an expert advising the reform process, submitted a series of proposals. The sub-committee also considered the recommendations of the Public Representations Committee chaired by Lal Wijenayake.