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Closer scrutiny of criticisms against 20A

Date : 2020-Sep-21
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Over the past several days, we have been hearing various criticisms of the 20A by members of the opposition as well as from pro-government quarters. Some members of the government audit service too came out against certain provisions in the 20A. Are these criticisms valid or are we missing something? If we grade the criticisms that have got the most amount of media coverage from the most serious to the irrelevant, the most serious allegation relates to the issues concerning the Auditor General and the Audit Service Commission.


The decision of the government to abolish the Audit Service Commission and to make changes in the 19th Amendment provisions relating to the Auditor General are being portrayed as preparations for grand larceny on a hitherto unprecedented scale by the new Rajapaksa government. This is due to a misconception about the role of the Audit Service Commission. Many people are obviously under the impression that the Audit Service Commission is similar to the Elections Commission that the 19A created.


 We all know that the Elections Commission is the body that’s responsible for holding elections and after an election, all three members of the Elections Commission sign the Gazette announcing the names of those who have won seats. The Audit Service Commission that the 19A created was not a body like that. It’s not an Audit Commission but an Audit ‘Service’ Commission.  According to Article 153C(1) of the Constitution introduced by the 19A, the sole purpose of the Audit Service Commission is to preside over the appointment, promotion, transfer, disciplinary control and dismissal of the members belonging to the Sri Lanka State Audit Service. The only other task it has been assigned is to prepare the annual estimates of the National Audit Office, but you don’t need an Audit Service Commission for that.


In other words, the Audit Service Commission was created simply to duplicate the work already being done by the Public Service Commission. The question that has to be asked is, why have a clone of the Public Service Commission just to cater to the rather limited number of employees in the government audit service? Furthermore, if the Auditor General’s subordinates come under a specially created Audit Service Commission, shouldn’t the subordinates of the Attorney General also come under an AG’s Dept. Service Commission? If taken to its logical conclusion, there will be as many ‘service commissions’ as there are divisions of the government service. The decision to abolish the Audit Service Commission is therefore obviously a housekeeping measure so as not to needlessly duplicate work already being done by other bodies such as the Public Service Commission.

 

Powers of the Auditor General

 

Changes have also been proposed to the provisions relating to the Auditor General. Under the 19th Amendment, the provisions relating to the powers of the Auditor General reads as follows:


“154(1)The Auditor-General shall audit all departments of the Government, the  Office of the Secretary to the President, the Office of the Secretary to the Prime Minister, the Offices of the Cabinet of Ministers, the Judicial Services Commission, the Constitutional Council, the Commissions referred to in the Schedule to Article 41B, the Parliamentary Commissioner for Administration, the Secretary-General of Parliament, local authorities, public corporations, business and other undertakings vested in the Government under any written law and companies registered or deemed to be registered under the Companies Act, No. 7 of 2007 in which the Government or a public corporation or local authority holds fifty per centum or more of the shares of that company including the accounts thereof.”


 Under the proposed 20A, the above provision is to be replaced with the following:


“154(1) The Auditor-General shall audit the accounts of all departments of Government, the Offices of the Cabinet of Ministers, the Judicial Service Commission, the Public Service Commission, the Provincial Public Service Commissions, the Parliamentary Commissioner for Administration, the Secretary-General of Parliament and the Commissioner of Elections, local authorities, public corporations, and business or other undertakings vested in the Government under any written law.”


We see that under the changes contemplated by the 20A, references to the Office of the Secretary to the President, the Office of the Secretary to the Prime Minister is being taken out of Article 154(1). We also see that companies in which the government owns more than 50% of the shares have also been taken out of Article 154(1) by the 20A Bill. These changes are being portrayed as moves by the President and Prime Minister to create an environment conducive to engaging in grand larceny with complete impunity. The removal of the reference to companies in which the government owns more than 50% of the shares in the 20A is also being portrayed as a situation where all these companies will be placed outside the ambit of the Auditor General. But is that true? It has to be understood that all that the 20A seeks to do with regard to Article 154(1) which deals with the powers of the Auditor-General is to restore the status quo ante before the 19th Amendment was enacted – nothing more. Before the 19th Amendment was enacted, the old Article 154(1) was identical to that which is now being proposed in the 20A.


Does this mean that before the 19th Amendment was enacted, the Offices of the President and Prime Minister and companies in which the state-owned more than 50% of the shares, were exempt from the scrutiny of the Auditor General? To make any such assertion would be to be unfair to President J.R.Jayewardene and the UNP which promulgated the 1978 Constitution. The President’s Office and the Prime Minister’s Office were ALWAYS under the purview of the Auditor General under the 1978 Constitution. The reference to “all departments of Government” in the pre-19th Amendment Article 154(1) includes the Offices of the President and Prime Minister. Any pre-19th Amendment version of the Government Financial Regulations will bear this out. This writer is in possession of an old 1992 copy of the government Financial Regulations in which Appendix 10  on pages 411-43 lists the Presidential Secretariat under ‘A-Class’ government departments and the Prime Minister’s Office and the Cabinet Office under ‘B Class’ departments. The Office of Former Presidents is also categorized as a ‘B Class’ government department.


So all these bodies were always under the purview of the Auditor General. This writer can distinctly recall that there were exchanges between members of the opposition and the government regarding the Auditor General’s reports on the President’s Fund during the previous Rajapaksa government long before the 19th Amendment was enacted. All that the 19th Amendment did was to specify the inclusion of the Offices of the President and Prime Minister under Article 154(1) in a situation where they already came under that provision anyway. This a bit like the 19th Amendment repealing Article 42 of JRJ’s 1978 Constitution, and re-enacting it as Article 33A without changing a single word or comma and then claiming that it was the yahapalana government that made the President responsible to Parliament!


 The actual fact was that from the time the 1978 Constitution was first promulgated, the President had always been responsible to Parliament under old Article 42! (It may be stated as an aside that the 20A has sought to undo this piece of chicanery by repealing Article 33A and restoring JRJ’s old Article 42 to its rightful place.) If the yahapalanites fraudulently sought to claim credit for making the President responsible to Parliament by engaging in such blatant manipulation, it’s only to be expected that they would try to do the same when it comes to the changes made to Article 154(1).

 

Government-owned companies


 Another criticism being made is that while the 19th Amendment brought companies in which the government owns more than 50% of the shares within the ambit of the Auditor General, the 20A seeks to abolish that provision. To be sure, the 19th Amendment has included under Article 154(1) “business and other undertakings vested in the Government in which the Government or a public corporation or local authority holds fifty per centum or more of the shares”. The 20A replaces this with the more general phrase “business and other undertakings vested in the Government”. Some members of the government audit service even went to see the Ven. Mahanayake Theras and complained that all the companies in which the government owns more than 50% of the shares were to be taken out of the ambit of the Auditor General. That too is a false assertion. Companies in which the government owns more than 50% of the shares refers to business undertakings like Lake House and Lanka Mineral Sands Ltd. The Auditor General did audit the accounts of such companies even in the pre-19th Amendment era.


 However both before and after the 19th Amendment, it was not mandatory for any business undertaking in which the government held shares over 50% to use the services of the Auditor General. Article 154 (2) of the Constitution as introduced by the 19th Amendment reads as follows:


 “154 (2) Notwithstanding the provisions of paragraph (1) of this Article, the Minister in charge of any such public corporation, business or other undertaking or a company referred to in paragraph (1) may, with the concurrence of the Minister in charge of the subject of Finance and in consultation with the Auditor-General, appoint a qualified auditor or auditors to audit the accounts of such public corporation, business or other undertaking or a company referred to in paragraph (1). Where such appointment has been made by the Minister, the Auditor General may, in writing, inform such auditor or auditors that he proposes to utilize his or their services for the performance and discharge of the Auditor-General’s duties and functions in relation to such public corporation, business or other undertaking or a company referred to in paragraph (1) and thereupon such auditor or auditors shall act under the direction and control of the Auditor-General.”


 Before the 19th Amendment, the old Article 154(2) read as follows:


 “154 (2) Notwithstanding the provisions of paragraph (1) of this Article, the Minister in charge of any such public corporation or business or other undertaking may, with the concurrence of the Minister in charge of the subject of Finance, and in consultation with the Auditor-General, appoint a qualified auditor or auditors to audit the accounts of such public corporation or business or other undertaking. Where such appointment has been made by the Minister, the Auditor-General may, in writing, inform such auditor or auditors that he proposes to utilize his or their services for the performance and discharge of the Auditor-General’s duties and functions in relation to such public corporation, business or other undertaking and thereupon such auditor or auditors shall act under the direction and control of the Auditor-General.”


 Readers will note that the content of the two provisions are identical. Both before and after the 19th Amendment, the Minister in charge of the subject may appoint an audit firm to audit the accounts of a government-owned company. In doing so, he is required to obtain the concurrence of the Minister of finance, and to consult the Auditor General. After an audit company has been appointed to audit the accounts of a mostly government owned company, the Auditor General can write to that audit company and make them perform their duties under the direction of the Auditor General. Nothing has changed in this regard before and after the 19th Amendment. So if anyone claims that the 20th Amendment seeks to take companies in which the government owns more than 50% of the shares out of the ambit of the Auditor General, that’s a complete falsehood.  

 

Urgent Bills and dual citizenship

 

One of the changes made by the 19th Amendment was to amend Article 78 so that the time that had to elapse between Gazetting a Bill and presenting it to Parliament was increased from seven days to fourteen days. The 19A also repealed Article 122 which made provision for urgent Bills. Under the provisions of old Article 122, if the Cabinet certifies a Bill as being urgent in the national interest, the provision that a certain number of days has to lapse between the time a Bill is gazetted and presented in Parliament will have no application. The provision of Article 121 which enabled citizens to challenge the constitutionality of a Bill within one week of it being placed on the order paper of Parliament also ceased to apply. When Article 122 was invoked in the case of urgent Bills, the President could write to the Chief Justice requesting him to issue a special determination on the constitutionality of that Bill and the Supreme Court had to make their determination within 24 hours or a period not exceeding three days, as specified by the President.


 The 20A proposes to revive the provision for urgent Bills by re-enacting the old Article 122. The 20A also proposes to amend Article 78 so as to shorten the time between the gazetting of a Bill and its introduction in Parliament from fourteen days to seven days as it was in the pre-19th Amendment days. The proposed reintroduction of this provision for urgent Bills by the 20A has also run into much criticism. According to this writer’s recollection, nobody had any real issue with the provision for urgent Bills in Article 122 until for more than three decades until the 18th Amendment to the Constitution was brought forward as an urgent Bill in 2010. The NGO lobby which seeks to hit out at the government with everything they can lay their hands on, raised a hue and cry about the 18th Amendment being introduced as an urgent Bill. However in actual fact, even if the 18th Amendment had been introduced as an ordinary Bill, and gazetted seven days before it was presented in Parliament, as per the provisions of Article 78, the end result would be the same. 


 Even urgent Bills have to go before the Supreme Court. If there was anything unconstitutional in the 18th Amendment, it would have been shot down by the SC. If it was not shot down by the SC, then it was going to be passed anyway because the 2010 government had a steamroller majority in Parliament. The fact that it was brought as an urgent Bill had little or no impact on how things finally turned out. Yet the provision for urgent Bills itself became a target of those opposed to the Rajapaksas. As a matter of principle, every country should be able to introduce urgent legislation when the need arises. This is a necessary safeguard and a fallback position. The antipathy to the provision for urgent Bills stemmed from the fact that it was used to bring in a constitutional amendment. However the proposed Article 122 in the 20A has taken this into consideration and introduced a totally new clause 122(3) which states that the provisions relating to urgent Bills will not apply to any Bill for the amendment of the Constitution. If the 20A is passed into law, the provision for urgent Bills cannot be used to bring in constitutional amendments.


 The 20A also seeks to repeal Article 91(1)(d)(xiii) by which the 19th Amendment added dual citizenship to the list of disqualifications for election to Parliament. Nobody in this country had any issue with dual citizens contesting elections. This became an issue only because the yahapalana government wanted to remove Gotabaya and Basil Rajapaksa from politics. To countenance this will mean wholesale surrender to yahapalana thinking. The yahapalana side is trying to pass off one of the most egregious outrages they committed as a virtue. We have heard some people citing the instance of Arjuna Mahendran to justify the ban on dual citizens contesting elections. However, Mahendran was not a dual citizen. He was a Singaporean not holding any kind of Sri Lankan citizenship. 


-C.A.Chandraprema-

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