Sunday Times 2
Rolling back the 19th Amendment
I have been reading several newspaper reports that the 19th Amendment to the Constitution should be repealed. This statement rides in the same carriage as the call to restore the 18th Amendment which was repealed by the 19th Amendment.
In another statement, there is a call to abolish both the 18th and 19th Amendments.
It would hardly be necessary to repeal the provisions of Chapter XII, which contains Articles 82 to 84, except to consider whether those who propose the repeal contemplate control of two thirds of the 225 members in Parliament, not to mention a referendum if the proposed amendment impacts on specified rights.
In this scenario, the proponents must either anticipate the 150 plus votes required to be garnered from large-scale crossovers, or at an election following an early dissolution of Parliament. Such dissolution, unless at the request of two thirds of the MPs, becomes possible when four and a half years have elapsed after the current Parliament’s first meeting which took place on September 1, 2015.
Significantly, that decision has to be taken by the President, but who would be the President on the critical date?
If the current President only holds office till January 2020, then obviously that decision will have to be taken by the President whose-term will begin in January 2020.
I had said ‘significantly’ because of the submission that the current holder ceases his term of office either after six years, or five years after August 2015.
Therefore, the current President must either anticipate a request from 150+ MPs, or re-election at the presidential election or success in the interpretation that his term only ends after six years, or at least in August 2020.
Is there a Plan “B”?
Several of those wanting a repeal of the 19A have remarked that the dilution of the President’s powers through 19A was responsible for the security lapses that failed to prevent the Easter Sunday terror attacks.
They maintain that a dichotomy of political alignment between the President and the Prime Minister and the Cabinet of Ministers, necessarily means that the government of the people becomes unworkable.
Some lawyers, politicians and clerics subscribe to the view that this crisis has resulted from 19A, and if it becomes impractical, if not impossible, to reconcile the divergent paths of the President and the government by an amendment to the Constitution, the scenario has arisen to resort to an autochthonous [or a grassroots] Constitution.
Are they presenting an argument that when a constitutional provision prevents the security of the state being maintained at an efficient level, or when governance of the people has ‘broken down’ while the procedure by which the disputed Article or Articles are to be removed or amended is inaccessible that there is legal precedent for the recommended solution to be placed before the people for their approval?
Even assuming that such a situation has arisen, what procedure must be followed?
An obvious flaw that if a presidential election candidate offers a ‘new Constitution’ in his manifesto and gains the necessary mandate from the ‘ultimate sovereign’ if he wins the election, appears to suffer from the lacuna that a presidential election is not run as a ‘one issue’ question for a ‘yes’ or ‘no’ from the voters.
Countries which emerge from foreign rule or undergo a revolution to overthrow the government need to construct a framework where the people agree on the rules under which they are to be governed.
Hence the need for a Constitution that does not gather validity from amendments or the repeal of the previous Constitution as provided in the Constitution itself.
On the other hand, where the provisions of a Constitution render necessary amendments to be impractical or impossible, such as a provision that require a five sixth or higher positive vote from the total membership of Parliament, the solution may well be the consultation and approval of the people.
Such mandate would require a referendum with the voter being asked to answer specific questions with ‘yes or no’ responses.
Whether such a procedure testing each of the provisions of the entire Constitution would be appropriate for voters in every corner of the country is a question for which I have no answer.
Perhaps we need to select a few crucial questions and get the mandate from the people for each such question. The questions need be structured to avoid ‘Yes’ to one necessarily being ‘No’ to another.
(The writer is a former
Attorney General)