An Unorthodox Preface To 20A

 By Harsha Gunasena –

Harsha Gunasena

Emeritus Professor of University of Colombo G.L. Peiris, who has transformed from an academic to a politician, said recently that we should not be afraid of power. What he meant was that the people should not be afraid of the government exercising its two third majority in Parliament to pass whatever the legislation they want.

Why should the people be afraid when the real power is with them? 

Monkey Master

Gene Sharp in his landmark book, ‘From Dictatorship to Democracy, A Conceptual Framework for Liberation’, quoted  one of the fables of Liu Ji, who was a great military strategist, officer, statesman and poet lived in 14th century in China. The fable goes as follows.

In the feudal state of Chu an old man survived by keeping monkeys in his service. The people of Chu called him “ju gong” (monkey master).

Each morning, the old man would assemble the monkeys in his courtyard and order the eldest one to lead the others to the mountains to gather fruits from bushes and trees. It was the rule that each monkey had to give one-tenth of his collection to the old man. Those who failed to do so would be ruthlessly flogged. All the monkeys suffered bitterly but dared not complain.

One day, a small monkey asked the other monkeys: “Did the old man plant all the fruit trees and bushes?” The others said: “No, they grew naturally.” The small monkey further asked: “Can’t we take the fruits without the old man’s permission?” The others replied: “Yes, we all can.” The small monkey continued: “Then, why should we depend on the old man; why must we all serve him?”

Before the small monkey was able to finish his statement, all the monkeys suddenly became enlightened and awakened.

On the same night, watching that the old man had fallen asleep, the monkeys tore down all the barricades of the stockade in which they were confined, and destroyed the stockade entirely. They also took the fruits the old man had in storage, brought all with them to the woods, and never returned. The old man finally died of starvation.

Sri Lanka

Therefore, those who exercise power unduly should be afraid of the consequences. In 1978 when President JR Jayewardene brought the present constitution the majority of the people supported it. Only a few objected to it. This writer was in the second group. This constitution has both positive and negative characteristics. The UNP which approved the constitution later opposed the dictatorial powers of the President when they were in the opposition and when they could not enjoy such powers. When they were in power, the 19th amendment to the constitution was brought in and was approved in the Parliament with the opposition of only one member. The two important amendments to the constitution, 17th and 19th were brought in with the consent of the opposition as well. Those amendments restricted the power of the President. The constitutions which were not powered by the consents of the respective oppositions have brought disastrous results to the introducers of those constitutions as well as to the people.

Therefore, we should be afraid to some extent.

According to the 1978 constitution the President had lot of ways to use his discretionary power. It is not appropriate since the President is not a king or a queen who gets the power by heritage. Democracies elect their presidents and they are guardians of the state for a specified period. That is why the 17th and 19th amendments were brought in. There are flaws of the 19th amendment which was passed without a prolonged discussion. Those should be rectified but the essence of it should not be touched since it is not appropriate to allow the President to fill the high positions of the state with his sole discretion. That was the situation prior to the 17th amendment. The Constitutional Council changed that position.

USA

There is a cooperative appointment mechanism of the high officials in USA. According to the Section 2 of the Article II of the constitution of USA the President can appoint the high officials of the state with the advice and consent of the Senate.

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

France

In France there is a representative appointment mechanism to the Constitutional Council to which the Institutional Acts, before their promulgation, Private Members’ Bills before they are submitted to referendum, and the Rules of Procedure of the Houses of Parliament shall, before coming into force, be referred, which shall rule on their conformity with the Constitution. In addition to that it shall ensure the proper conduct of the election of the President of the Republic and referendum proceedings; and rule on the proper conduct of the election of Members of the National Assembly and Senators in disputed cases.(Articles 58-61 of the constitution of France)

According to Article 56 of the constitution of France, the Constitutional Council shall comprise of nine members, each of whom shall hold office for a non-renewable term of nine years. One third of the membership of the Constitutional Council shall be renewed every three years. Three of its members shall be appointed by the President of the Republic, three by the President of the National Assembly and three by the President of the Senate. In addition to the nine members provided for above, former Presidents of the Republic shall be ex officio life members of the Constitutional Council.

India and South Africa

In India, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission comprising of Chief Justice, two other senior judges, Union Minister in charge of law and Justice and two eminent persons nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House. (Article 124 of the Indian constitution)

In South Africa the president, after consulting the Judicial Service Commission and the leaders of parties represented in the National Assembly, appoints the chief justice and the deputy chief justice. Constitutional Court is the highest court in South Africa. Other Constitutional Court judges are appointed by the president after consulting the chief justice and the leaders of parties represented in the National Assembly, from a list of nominees presented by the Judicial Service Commission. (Article 174 of South African constitution)

19th Amendment

Therefore, there are various checks and balances in various countries to the higher appointments in the state specially to the judiciary. In Sri Lankan constitution prior to the 17th amendment there were no such checks to the discretionary power of the President. After the 19th amendment with the reintroduction of the Constitutional Council, which was taken off by the 18th amendment, the President shall not appoint to the posts of the Chief Justice and the Judges of the Supreme Court; the President and the Judges of the Court of Appeal; the Members of the Judicial Service Commission, other than the Chairman; the Attorney-General; the Auditor-General; the Inspector-General of Police; the Parliamentary Commissioner for Administration (Ombudsman); and the Secretary-General of Parliament, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President. The procedure applies to nine independent commissions as well.

The precedence in Sri Lanka as well as in prominent democracies in the world in respect of checks and balances in relation to the discretionary power of the President is outlined above. It is the duty and the responsibility of the holder of power to use it rather than abuse it. 

published in colombo Telegraph on 4/9/2020

https://www.colombotelegraph.com/index.php/an-unorthodox-preface-to-20a/

Republished in StanKaba

https://stankaba.com/an-unorthodox-preface-to-20a/