Important But Imperfect: Recommendations On The Draft 21st Amendment To The Constitution Bill

By Ruwan Laknath Jayakody –MAY 30, 2022

Ruwan Jayakody

Important but imperfect.

This is how some have described the draft of the proposed 21st Amendment to the Constitution Bill (the framers of which are Justice and Constitutional Reforms Minister, President’s Counsel Dr. Wijeyadasa Rajapakshe, Prime Minister Ranil Wickremesinghe, and lawyers associated with the latter), which has been presented to the Cabinet of Ministers and the political parties represented in the Parliament, but is yet to be gazetted as it awaits amendments in the form of additions and omissions of text from the aforementioned groups prior to resubmission to the Cabinet for approval.

A lot has been made of the fact that the objective and purpose of the proposed 21st Amendment to the Constitution is to restore the provisions of the 19th Amendment to the Constitution and to enhance its overall intent (a ‘19/19th plus’ so to speak) which is to curtail the powers of the Executive Presidency, provide for a more democratic mechanism for the process of making apex public appointments, and to improve accountability, financial independence and transparency, and also to repeal the 20th Amendment to the Constitution.

Be that as it may, anything (the Kantian [reference to German philosopher Immanuel Kant] ‘thing-in-itself’ if you will) – in this case, the draft 21st Amendment to the Constitution Bill – must stand on its own merits and demerits. Hence, to rectify its flaws, address its shortcomings and perfect its imperfections, one is required to refer to the philosophical amuse-bouche proffered by the piquant fulltime forensic psychiatrist and part time cannibal, Dr. Hannibal Lecter in The Silence of the Lambs who cites the Roman Emperor and stoicist Marcus Aurelius. In Meditation X, found in Book Eight of Aurelius’s Meditations, we are told how to “examine all things that present themselves” by inquiring into “This, what is it in itself, and by itself, according to its proper constitution? What is the substance of it? What is the matter, or proper use? What is the form, or efficient cause? What is it for in this world, and how long will it abide?”

Constitutional Council

The draft of the 21st Amendment to the Constitution Bill proposes the repeal of Chapter VII A of the Constitution on The Executive – The Parliamentary Council. The Parliamentary Council is comprised of the Prime Minister, the Speaker of the Parliament who is also the Chairperson of the Parliamentary Council, the Opposition Leader, a Parliamentarian nominated by the Premier and a MP nominated by the Opposition Leader. It is tasked with making observations – note that it is not with making recommendations or approvals – to the President, on the making of apex appointments, namely the Chairpersons and Members of independent Commissions and the Chief Justice (CJ) and the Judges of the Supreme Court (SC), the Court of Appeal (CoA) President and the Judges of the CoA, Members of the Judicial Service Commission, the Attorney General, the Auditor General (AG), the Parliamentary Commissioner for Administration (Ombudsman), the Secretary General of the Parliament and the Inspector General of Police (IGP). The Commissions in question include the Election Commission, the Public Service Commission, the National Police Commission (per the said draft Bill is to be tasked with the appointment, promotion, transfer, disciplinary control and dismissal of Police officers in consultation with the IGP), the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption (per the said draft Bill is to be given suo motu powers), the Finance Commission, and the Delimitation Commission.

The Parliamentary Council is to be replaced by a Constitutional Council including in addition to the Premier, the Speaker (Chairperson of the Constitutional Council) and the Opposition Leader, a MP appointed by the President, two MPs and three non-MPs nominated by the Premier and the Opposition Leader, and a MP nominated by majority Parliamentary consensus but one who does not belong to the parties to which the Premier and the Opposition Leader belong to. Additionally, when nominating the aforementioned two MPs and three non-MPs, the Premier and the Opposition Leader have to consult the leaders of political parties represented in the Parliament, so as to ensure that the Constitutional Council reflects the pluralistic character, professional and social diversity in the society. Also, the three non-MPs should be persons of eminence and integrity who have distinguished themselves in public or professional life, and who are not members of any political party whose nomination can be approved by the Parliament.

Moreover, the Constitutional Council is vested with the power to recommend appointments, and sans such recommendations from the Constitutional Council of fit and proper persons, the President cannot appoint any Chair or Member of a Commission. Here too, the Constitutional Council should endeavour in their recommendations to reflect the pluralistic character including gender within the society. All removals of Members of Commissions can only be done per the law and in the absence of such, the approval of the Constitutional Council.

The Commissions that have been added anew in the draft Bill include the Audit Service Commission (to be comprised of the AG who is also the Chair, two officers of the AG’s Department who retired as Deputy AGs or above, a retired SC, CoA or High Court Judge, and a retired Class I Administrative Service officer) and the National Procurement Commission (to formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines, for the procurement of goods and services, works, consultancy services and information systems by Government institutions).

The additional apex appointments to be made concerning which the Constitutional Council is to be empowered under the said draft Bill include the Governor of the Central Bank. Furthermore, the Constitutional Council is to obtain the CJ’s views concerning the recommendations for Judges of the SC and CoA including the CoA’s President.

It has also been provided for the Constitutional Council’s decisions to be challenged on Fundamental Rights (FR) related grounds.

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