Sri Lanka’s 20 th., Constitution Amendment bill, which was approved by the cabinet of ministers and published in the official gazette on Thursday, attempts to take the country back to the Executive Presidency which existed between 1978 and 2015.
In 2015, the 19th.Amendment reduced the powers of the Executive President although he was directly elected by the entire voting public of Sri Lanka. However, the division of power envisaged by 19A was neither rational nor democratic. The result was that the then President Maithripala Sirisena and the then Prime Minister Ranil Wickremesinghe clashed almost on a daily basis, making the State machinery dysfunctional.
The current President, Gotabaya Rajapaksa, had made the abolition of 19A a key promise in his election campaign in November 2019 and got an overwhelming endorsement of his plan to get rid of it.
The 20 th.Amendment bill is the result of this controversy. It is to be debated in parliament and will become an Act if it gets two-thirds majority support. The government is currently one short of a two thirds majority. It has 149 while the requirement is 150. It hopes to see it through.
“To be sure of getting it passed, we need at least 152 committed votes. Efforts are being made to get the extra support,” said ruling coalition MP and Minister Udaya Gammanpila.
The 20 th.Amendment (20A for short) aims at repealing several provisions of the existing 19 th.Amendment (19A for short) which curtail the powers of the Executive President (and also parliament) and places much of the responsibility of decision making on all matters in the hands of several Independent Commissions. The Constitutional Council is at the top of the pile.
The 20A envisages the abolition of the Constitutional Council (CC), which has non- parliamentarians. The CC is to be replaced by the Parliamentary Council (PC) which is entirely composed of MPs.
The PC had been there before (through the 18 th.Amendment) from 2010 to 2015, when it was abolished and replaced by the CC through the 19A.
Under 20A, most Independent Commissions (like the Police Commission, Judicial Commission and the Public Service Commission), will stay. But the Audit and the Procurement Commissions will have gone.
Members of the commissions under 20A will be appointed by the President after getting the observations of the Parliamentary Council. He is not bound by their observations. Therefore, in effect, the appointments will be made by the President.
“The independent commissions will cease to be independent,” commented M.A.Sumanthiran, a leading Supreme Court lawyer, MP and spokesman of the Tamil National Alliance (TNA).
In President Gotabaya Rajapaksa’s view, these commissions which determine recruitment, transfer and dismissal of officials in various departments, will have to work in conjunction with the head of the Executive branch of the government, namely, the President. In the past five years, the Independent Commissions and the President had worked at cross purposes and wrecked the administration of the country. Too many cooks were there, spoiling the broth.
While President Sirsena claimed that he drew his power from the electorate, the Independent Commissions claimed that they drew their power from the constitution and the constitutional ideology of having checks and balances.
If the 20A is passed, power will be shared by the directly elected Executive President and the elected parliament. Non-elected functionaries will have no place. Under 20A, key appointments will be made by the President after getting the observations of the Parliamentary Council (PC). This makes it clear that it is the President’s will which will prevail.
The PC will comprise a) the Prime Minister; (b) the Speaker; (c) the Leader of the Opposition; (d) a nominee of the Prime Minister, who shall be a Member of Parliament; and (e) a nominee of the Leader of the Opposition, who shall be a Member of Parliament.
The persons appointed in terms of sub-paragraphs (d) and (e) above shall be nominated in such manner as would ensure that the nominees would belong to communities which are communities other than those to which the persons specified in paragraphs (a), (b) and (c) above, belong. This is to accommodate Sri Lanka’s pluralistic society.
The Independent Commissions envisaged by 20A are: 1.Election Commission. 2. The Public Service Commission. 3. The National Police Commission. 4. The Human Rights Commission of Sri Lanka. 5. The Commission to Investigate Allegations of Bribery or Corruption. 6. The Finance Commission. 7. The Delimitation Commission. The Audit Commission and Procurement Commission will cease to exist.
The President will appoint the Chief Justice and the Judges of the Supreme Court; the President and Judges of the Court of Appeal; 3. the Members of the Judicial Service Commission, other than the Chairman; the Attorney-General; the Auditor-General; the Parliamentary Commissioner for Administration (Ombudsman); and the Secretary-General of Parliament after getting the observations of the Parliamentary Council.
President Can Take Any Portfolio
The 20A makes it clear that the President is a member and head of the cabinet of ministers and, in that capacity, he can assign to himself any ministerial subject or function. He shall remain in charge of any subject or function not assigned to any Minister.
Under the existing 19A the President cannot hold any portfolio, including Defense, traditionally held by Presidents since 1978. President Gotabaya Rajapaksa had recently taken over the Defense Portfolio by seeing 19A in the light of the entirety of the constitution which says that the sovereignty of the people is exercised by the Executive also.
The 20A seeks to bring the minimum age for contesting the Presidency from 35 to 30 as it was before 19A. The President will be able to dissolve parliament after the first year of its five year term and order fresh elections. The 19A says that he cannot do so before the expiry of four and a half years. President Rajapaksa is keen on having a stable parliament to conduct government business. He fears that it will be disastrous to keep a divided and acrimonious parliament afloat for four and half years.
There is no limit to the size of the cabinet in the 20A bill. The lifting of the cap on cabinet size will enable more MPs to hold ministerial offices. The 20A also allows dual citizens to contest elections. This is deemed essential in Sri Lanka as many elite and qualified Sri Lankans are dual citizens. Specifically, the 20A will enable the ruling Sri Lanka Podujana Peramuna’s ace organizer Basil Rajapaksa to enter parliament. He is a US-Lankan dualcitizen.
The 20A however retains the two-term cap for those aspiring for the Presidency. And the term of the President will continue to be five years and not six.
Committee To Draft New Constitution
It is interesting that the government should go in for a piecemeal constitutional amendment like 20A now when it has a cabinet approved project to draft an entirely new constitution. A nine-member committee has been set up to work on the new constitution. It will be headed by leading lawyer Romesh de Silva.
“The idea is to be able to function without fetters while a new constitution is being prepared, “ said Tamil MP M.A.Sumanthiran.