There are legal grounds to seek a referendum on the proposed 20 th. Amendment to the Sri Lankan constitution, says M.A.Sumanthiran, spokesman of the Tamil National Alliance (TNA) and a leading Supreme Court lawyer.
According to Sumanthiran, the 20A seeks to change the basic principles embedded in the constitution. It gives all powers to the Executive President without any checks and balances. This is tantamount to changing the basic structure of the constitution. And if the basic features are to be changed, the amendment bill will have to be submitted to a referendum, Sumanthiran said.
Concept of Basic Structure
Explaining the concept of the “basic structure” of the constitution, Sumanthiran said that the constitution has to be necessarily democratic and cannot overly pile power on the office of Executive President. Although the 1978 constitution gave the directly elected Executive President all powers, there has been a strong and consistent movement in Sri Lanka against a powerful Executive Presidency since the time of President Chandrika Kumaratunga in the mid- 1990s. The most recent phase of the movement was in 2014-2015 when Maithripala Sirisena was elected on an explicitly abolitionist platform.
The constitution is not a lifeless document or an edict etched in stone and unalterable. It is a living, pulsating and growing organism, Sumanthiran said and added that over the years the concept of its ‘basic structure” has changed. Democracy sans concentration of power or power with checks and balance is the basic creed embedded in the spirit of the constitution, Sumanthiran averred. And when this is sought to be changed drastically, a referendum is a must, he said.
By repealing the 19 th.Amendment, the Gotabaya Rajapaksa government will be depriving the country of the checks and balances which were embedded in the 19A.
Under 20A, the Independent Commissions, appointed directly by the President, will be blindly carrying out the President’s wishes. The Parliamentary Council, which will replace the Constitutional Council, will not only be deprived of inputs from non-MPs and distinguished persons drawn from outside parliament, but will also lose its teeth because the President only needs to seek its “observations” and not its “consent”. On the other hand, the 19A makes it mandatory for him to go by the views of the Constitutional Council.
The 20A would give the President the right to recruit and sack anybody. He can join the cabinet, determine who others will be members of the Council of Ministers, what portfolios they will hold, and for how long. As the author of the 1978 Presidential constitution J.R.Jayewardene famously said about his Presidency, the President will have all powers except the power to change a man into a woman and a woman into a man.
A counter argument put out by some leading pro-government lawyers is that the 20A is only restoring features of the Lankan constitution which were there for long from 1978 onwards. The 20A will only restore the situation that existed till the 19A was passed in 2015. It is not something totally new. It is only a restoration.
Besides, it is only meant to strengthen the Executive Presidential system, which, undeniably, is one of the basic features of the constitution. Since the 20A does not change the basic features of the constitution it does not need a referendum, they aver.
But this line is rejected Sumanthiran who described it as “simplistic”. He said that one should keep in mind three things while discussing the basic structure of the constitutuon:
Firstly, the constitution is not a static thing but a living and growing organism to meet the changing aspirations of the people. Change is thus intrinsic to constitutions in democratic countries.
Secondly, change has to be in the direction of democracy and not a regression to autocracy. The former would be in the spirit of the constitution and the latter a violation of it. In light of these two principles, 19A could be deemed to be in accordance with the basic structure of the constitution and the 20A against it as it leads to the concentration of power not to its distribution to accord with the principle of checks and balances.
Thirdly, there has been a long-standing and consistent (albeit no fully unsuccessful) democratic movement in Sri Lanka to dilute or abolish the Executive Presidency and hand over power to parliament. Although a powerful Executive Presidency was created in 1978 and remained in place for long, in the mid 1990s, the people of Sri Lanka had got tired of the concentration of power in the hands of a President, and had begun to crave for dilution of power.
Chandrika Kumaratunga came to the Presidency to divest herself of much of her constitutional power and give them to parliament. Since then, getting rid of the Executive Presidency has been on the agenda of every major party and leading Presidential candidate. The last man to come to power with abolition as his platform was Maithripala Sirisena as recently as 2015.
Sumanthiran said and it was because of such a movement that the 17 th.Amendment was enacted in 2001 to establish Independent Commissions. This was done by a United National Party (UNP) regime with the cooperation of President Kumaratunga, who represented the Sri Lanka Freedom Party (SLFP).
However, when it came to the crunch, Kumaratunga did not want to shed power. During and after Eelam War IV, the need for a strong government was acutely felt by President Mahinda Rajapaksa. The 18 th.Amendment which he pushed through in 2010, gave him all the powers he needed and much more.
But by 2014, absolute power had corrupted his regime absolutely and he lost the Presidency to Maithripala Sirisena who answered the peoples’ yearning for a regime without power being concentrated in one man or one post. The 19A was enacted in 2015 to reduce the powers of the President and re-establish the Independent Commissions.
But regrettably, the confusing system that came into being under 19A could not reconcile the innate interests of a directly elected Executive President (Sirisena) and the system that the 19A created. The flaws in the 19A were partly responsible for the poor performance of the “Yahapalanaya” government.
This Yahapalanaya’s failure led to a feeling among the majority Sinhalas that Sri Lanka cannot do without a strong government, which explains the record-breaking victory of arch centralists Gotabaya Rajapaksa and Mahinda Rajapaksa in the 2019 and 2020 Presidential and parliamentary elections.
With the political moment being in favour of centralization, President Gotabaya introduced a draft 20 th Amendment bill to almost completely replace the 19A. Some of the structures of the 19A like the Independent Commissions will remain under his scheme, but only as shells.
The main opposition party, the Samagi Jana Balawegaya (SJB) has announced that it will go to the Supreme Court against the 20A. Sumanthiran said that the basic plea would necessarily be that a referendum should be made compulsory to pass 20A.
Sumathiran acknowledged that the 19A has flaws which stymie the work of the Executive President. But he added that these flaws could be discussed and ways found to make corrections in the system without throwing the baby with the bathwater.