Sunday, 22nd February 2015
The 19th Amendment to the Constitution is meant to bring back the 17th Amendment with improvements, while doing away with the arbitrary nature of the 18th Amendment. The 19th Amendment is said to remove certain dictatorial powers afforded to the Executive. The 19th Amendment will also instate the independence to the Commissions of the Elections Commission, Public Service Commission and Police Commission, to name just a few. It also proposes to centralize the Executive power of Sirisena upon a Prime Ministership, presently manned by United National Party (UNP) Leader Ranil Wickremesinghe, who is answerable to the Cabinet, and is also the bastion of the UNP. The question is whether in the light of the upcoming general election, will it achieve all of these lofty goals against a backdrop of political volatility? Sirisena has put forward a set of proposals constituting the 19th Amendment, the Parliamentary Select Committee Report on Electoral Reforms chaired by Dinesh Gunawardene too has been presented alongside former Minister of External Affairs, Prof. G.L. Peiris's one.
Discussion Paper on Constitutional Reforms – The following are the main proposals for constitutional reforms under discussion;
President
The President will be the Head of State, the Head of the Executive and the Commander-in-Chief of the armed forces. The President shall always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister or of such other minister as has been authorized by the Prime Minister. The President may require the Prime Minister and any such minister to reconsider advice given to him and may require Parliament to reconsider a Bill presented to him for assent. He shall act on advice given after reconsideration and shall give assent to a Bill passed after reconsideration.
In addition to the powers and duties presently exercised under Article 33, the President shall promote national reconciliation and integration, ensure and facilitate the preservation of religious and ethnic harmony and ensure and facilitate the proper functioning of the Constitutional Council and the Independent Commissions.
Presidential immunity does not extend to acts or omissions of the President in his official capacity. The Speaker/Chair of the Council of State shall act for the President.
The term of office of the President shall be 5 years. Mode of election of the President will not be changed. This will be a matter for the next Parliament. The President may be removed by passing a no-confidence motion with a 2/3 majority. Present impeachment provisions will be deleted.
Prime Minister and Cabinet
of Ministers
The Prime Minister will be the Head of the Government. The President shall appoint as Prime Minister the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament. The President may also appoint a Deputy Prime Minister on the advice of the Prime Minister.
The number of ministers shall not exceed 30. The total number of Ministers of State and Deputy Ministers shall not exceed 40. Where the parties with the highest and second highest number of seats agree to take part in a government of national unity, Parliament may pass a resolution to increase the above mentioned numbers to not more than 45 and 55 respectively for the duration of the government of national unity. This will be applicable to the next Parliament only.
Special provisions relating to the present President
During the term of office of the present President, the subjects of Defence, Mahaweli Development and Environment shall be assigned to him. (Provisions similar to present Article 44 (2).) In arriving at any decision or policy pertaining to the subjects and functions assigned to him, the President may summon meetings of the Cabinet of Ministers and preside at such meetings.
Parliament
The term of Parliament shall be five years. Parliament may be dissolved during the first four years and six months only upon a resolution to that effect being passed by a 2/3 majority.
Constitutional Council and Independent Commissions
Provisions relating to the Constitutional Council (CC) and independent institutions, repealed by the 18th Amendment, will be reinstated subject to certain changes. The composition of the CC is unchanged except that the 5 persons to be nominated by the Prime Minister and Leader of Opposition after consulting leaders of political parties and independent groups shall reflect the pluralist character of Sri Lanka, including professional and social diversity, and that the professional expertise of the nominees will be taken into consideration. Changes will be made to overcome difficulties experienced in the past – members deemed to be appointed if President does not appoint following nominations, quorum, CC may function despite vacancies, etc.
The Audit Service Commission and the National Procurement Commission are added to the list of independent institutions. The CC shall obtain the views of the Chief Justice, the Minister of Justice, the Attorney General and the President of the Bar Association of Sri Lanka when considering appointments to the Supreme Court and Court of Appeal.
National Police Commission: IGP shall be entitled to be present at and participate in meetings except at any meeting where any matter pertaining to him is discussed. Where the Commission has delegated its powers to any Police Officer, the IGP may appeal to the Commission against any order made by such Police Officer in the exercise of such delegated powers.
Council of State
The functions of the Council shall be to make recommendations to the President and the Cabinet of Ministers on the implementation of matters contained in the Statement of Government Policy, the adherence to the principles of good governance by all organs of government, Bills immediately upon their publication in the Gazette, proposals for legislation as may be referred by the Cabinet of Ministers and matters of public importance referred to it by the President.
Composition: 35 members appointed jointly by the Prime Minister and the Leader of the Opposition with the approval of the Constitutional Council and Chief Ministers. Twenty seats shall be apportioned amongst the recognized political parties and independent group represented in Parliament, in proportion to their representation in Parliament. A political party or independent group not being represented shall be entitled one seat. The leaders of the recognized political parties or independent groups to which seats are so appointed shall be entitled to appoint members to fill such seats. All appointees shall be persons of integrity who have achieved distinction in their respective professions or vocations.
Chairman and Vice Chairman shall be appointed by the President.
Parliamentary Committees
There shall be a Consultative Committee for every Ministry. The meetings of the following Committees shall be open to the public: Select Committees, Consultative Committees, Public Accounts Committee, Committee on Public Enterprises and Committee on Public Petitions. The Chairperson of the Public Accounts Committee and of the Committee on Public Enterprises shall be a MP nominated by the Leader of the Opposition.
Bills
Bills shall be published in the Gazette 14 days before the first reading. Bills will be certified by the President. There will be no urgent Bills.
Auditor General and Audit Service Commission
The Audit Service Commission shall consist of the Auditor General, two senior retired audit officers who were served in the post of Deputy Auditor General or above and two retired officers who have distinguished themselves in the fields of auditing, accountancy, law, economics or public administration and who have had over fifteen years experience in a senior executive post in the public service, appointed by the President, on the recommendations of the Constitutional Council.
The functions of the
Commission shall be to:
Approve rules pertaining to schemes of recruitment, or of the appointment, remuneration payable, transfer, dismissal or disciplinary control of the members belonging to the Sri Lanka State Audit Service;
Prepare annual estimates of the National Audit Office and submit to the Speaker to be reviewed by Parliament; and discharge such other duties and functions as may be provided for by law.
The Auditor General shall audit all Ministries and Government Departments; Offices, institutions and Commissions receiving appropriations made by Parliament; Provincial Councils, Local Authorities and Public Corporations; business or other undertakings vested in the government by or under any written law; anybody or authority established by or under any written law with public resources provided wholly or partly and whether directly or indirectly, by the Government; companies in which any such body or authority is holding not less than 40% of the shares of share capital; and companies in which any such body or authority is holding not less than 40% of the share capital.
'Audit' includes technical audits, environmental and value for money audits.
National Procurement Commission
The Commission shall consist of five members appointed by the President on the recommendation of the Constitutional Council, of whom at least three members shall be persons who have had proven experience in procurement, accountancy, law or public administration. It shall be the function of the Commission to formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines for the procurement of goods and services by all government institutions. The Commission shall also (a) report on whether all procurement of goods and services by government institutions are based on procurement plans prepared in accordance with previously approved action plans; (b) report on whether all qualified bidders for the provision of goods and services to government institutions are afforded an equal opportunity to participate in the bidding process for the provision of those goods and services; (c) ensure that the procedures for the selection of contractors, and the awarding of contracts, for the provision of goods and services to government institutions are fair and transparent; (d) report on whether members of Procurement Committees and Technical Evaluation Committees relating to high value procurements by government institutions are suitably qualified; and (e) investigate reports of procurements made by government institutions outside established procedures, and to report the officers responsible for such procurements to the relevant authorities for necessary action.
Right to Information
The right to information will be included as a fundamental right. This right will be subject to such restrictions prescribed by law as are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, privacy, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Parliament shall, by law, make provision to give effect to this right.
Date/s of operation
Provisions relating to the President and Cabinet of Ministers will come into force on 22 April 2015. All other provisions come into force on the date on which the 19th Amendment becomes law.
Transitional provisions:
The members of the Public Service Commission, National Police Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption and Finance Commission, shall cease to hold office on the date on which the 19th Amendment becomes law.
Special provisions relating to the period 22 April 2015 to the conclusion of the next general election
The President shall preside over meetings of the Cabinet of Ministers. The President may, with the concurrence of the Prime Minister, assign to himself or herself any subject or function and may, with like concurrence, determine the ministries to be in his or her charge. The President shall, on the advice of the Election Commission, ensure the creation of proper conditions for the conduct of a free and fair general election of Members of Parliament.
