22nd Constitutional Amendment is nothing but a self-serving step taken by the Prime Minister and Justice Minister to suit the narrow interest of President Rajapaksa, who is bent on continuing to be Executive President till the end of his term.

By P.K.Balachandran

Critics of the draft 22 nd Amendment (22A) to the Sri Lankan constitution, which is to be presented to parliament next week, have denounced it as an affront to the masses who have been agitating for the restoration of democracy for months.

They say that the 22A is tantamount to breaking a promise to repeal the 20A in toto and restore the repealed 19A. Further, the 22A is nothing but a self-serving step taken by the Prime Minister and Justice Minister to suit the narrow interest of President Gotabaya Rajapaksa, who is bent on continuing to be Executive President till the end of his term.

The Tamil National Alliance (MP) M.A.Sumanthiran, who has become a bitter critic of Prime Minister Ranil Wickremesinghe, is quoted in the media as saying that the powers of President Gotabaya Rajapaksa should have been reduced at least to the degree of 19A. On the contrary, President Gotabaya is going to remain in the position enjoying most of the draconian powers of the 20th Amendment (20A).

“People have been fooled. They have been asked to believe that another Amendment to abolish the Executive Presidency will follow as the second step, whereas there is no such intention. The need of the hour is a system change. That is what the people ask,” the MP from Jaffna commented.

Constitutional expert Dr.Jayampathy Wickramaratne recalled that President Gotabaya Rajapaksa had offered to go back to 19A, even hinting that he was ready for the abolition of the Executive Presidency. These have been the two principal demands of the Aragalaya (the name bestowed on the struggle in front of the President’s office for more than two months).

“The majority of Sri Lankans backed the Aragalaya. Their demands were reflected in two surveys conducted earlier. Dr. Wickramaratne cites a survey by the Centre for Policy Alternatives (CPA) in April 2022 which showed that 74% of the respondents wanted the total abolition of the Executive Presidency compared to 50.3% in October-November 2021. The Mood of the Nation survey conducted by the think tank Verité Research shows that the approval rating of the government of the Rajapaksas in June 2022, was just 3%.

However, President Gotabaya backed by the ruling Sri Lanka Podujana Peramuna (SLPP), got around the issue by inviting the UNP’s lone MP Ranil Wickremesinghe to be Prime Minister. This step, described as a “masterstroke” by Dr.Wickramaratne, dealt a body blow to the Aragalaya as many of its upper and middle-class supporters thought that Ranil Wickremesinghe had the magic wand to make the economic problems caused by the Rajapaksa brothers disappear.

The appointment of Wickremesinghe gave some breathing time to the government, during which it pushed the 22A through. “But the 22A is nowhere near what was promised, whch was 19A. People’s trust in Wickremesinghe was clearly misplaced,” Dr.Wickramaratne said.

Under 19A, Ministers and Deputy Ministers were appointed by the President “on the advice of the Prime Minister”, a provision that greatly strengthened Parliament, the constitutional expert pointed out. Besides, the President’s power to remove the Prime Minister at will was taken away. Under 19A, the Prime Minister could not be removed so long as he enjoyed the confidence of parliament.

This was proved when Wickremasinghe was sacked by President Maithripala Sirisena and Mahinda Rajapaksa was appointed. Rajapaksa was ousted by a parliamentary vote held after a 52-day constitutional struggle.

The 20A was brought in to do away with many of the provisions of 19A, including the requirement that the President should appoint Ministers and Deputy Ministers on the advice of the Prime Minister. The President’s power to remove the Prime Minister at will was restored by 20A.

The 22A brings back the requirement that the President should act on the advice of the Prime Minister, but the value of this is diminished by the condition that the new norm will not apply during the present Parliament. In other words, Gotabaya Rajapaksa would rule in the same old way, points out Dr.Wickramaratne.

The President can sack a Prime Minister when, in his opinion, the Prime Minister has lost the confidence of parliament. Under 19A, on the contrary, the removal of the Prime Minister was a matter entirely in the domain of parliament.

In the Constitutional Council there would be three non-MPs appointed by the Speaker in consultation with the Prime Minister and the Leader of the Opposition and with the approval of a majority of MPs in parliament.

And there would one MP from a party other than the one represented by the Prime Minister and the Leader of the Opposition. But Dr.Wickramaratne points at some lacunae here. Small parties and parties of the minorities are not assured of nomination because the matter will be decided by the Speaker, the Prime Minister and the Leader of the Opposition with the sanction of the majority in parliament. The choice will necessarily go the way desired by the majority which could be contrary to the interests of the minority and small parties.

The upholding of pluralism is enjoined but there is no cast-iron system to ensure that. Some communities like plantation labor may not get representation at all. And there is no mention of gender.

In a short note issued on Thursday, the Centre of Policy Alternatives (CPA) said: “CPA has carefully considered the contents of the Bill and notes that the Bill does not revert the Constitution to the structure of government that prevailed under the Nineteenth Amendment (2015-19).”

“The Gazetted 22A does not curtail the powers of the President nor introduce checks and balances in any meaningful manner, contrary to the demands of the people of Sri Lanka. In the absence of any genuine attempt to address the inherent problems of governance, this attempt at reform will only worsen the existing political and economic crisis and destroy whatever little remaining faith citizens might have in constitutional governance.”