Lankan regime’s intention to bring about constitutional changes is suspect
Posted on April 20th, 2022

By P.K.Balachandran Courtesy NewsIn.Asia

Colombo, April 19: With pressure mounting on President Gotabaya Rajapaksa to quit, both in parliament and on the streets of Sri Lanka, the President and his Prime Minister, Mahinda Rajapaksa, are proposing constitutional changes in the hope that these will satisfy the people, yearning for democracy.   

While constitutional changes to restore democracy are a crying need, political observers see hidden agendas in the offers the Rajapaksas are making in terms of constitutional changes.ADVERTISEMENT

Observers dismiss the suggestion that the Rajapaksas are genuinely interested in reducing the gargantuan powers vested in the Executive Presidency.  

Sceptics say that President Gotabaya wants to buy time by re-starting the exercise to give Sri Lanka an entirely new constitution, which is a long drawn out process. He is hoping that the economic difficulties that Sri Lanka is passing through will ease over time with aid pouring in from India and other countries and also international financial institutions. All he has to do, in the interim, is to encourage the parliamentary opposition and the political protestors outside his office to go chasing the mirage of democracy.  

The President’s elder brother and Prime Minister Mahinda Rajapaksa wants to use the threat to reduce the powers of the President through a constitutional amendment, to get back his clout in the government which he had lost lately. The Prime Minister’s proposal is to curtail the powers of the President by bringing back the 19 th.Amendment of 2015 and discarding the 20 th. of 2020 which give the President enormous power to act arbitrarily.

Mahinda Rajapaksa’s plan is only a temporary expedient to pressurize Gotabaya  Rajapaksa to accommodate his men in the cabinet and lend an ear to his counsel on political matters. Mahinda was irked, or rather incensed, by the President’s choice of ministers in the revamped cabinet. Many senior leaders, who are identified with him, and many who were acolytes, were unceremoniously dropped supposedly to give the government a new-look with younger ministers.

It was widely reported that when the cabinet reshuffle was discussed with the President, the Prime Minster clashed with the President and walked out in a huff.  He also chose not to attend the swearing-in ceremony (though eventually he did meet the new ministers).

What is the 19 th.Amendment?

The 19 th. Amendment (19A) of 2015, which the Prime Minister wants to bring back with some amendments, had clipped the wings of the President and increased the powers of parliament. 19A had set up a Constitutional Council” and Independent Commissions” to oversee recruitments to top positions in the various organs of the State. But the  20 th.Amendment (20A) of 2020, got rid of the Constitutional Council and replaced it with the Parliamentary Council” with little or no power. The 20A crippled parliament and made the Presidency supreme to satisfy Mahinda Rajapaksa’s lust for power as the then President of Sri Lanka.

The 19A was a refreshing piece of legislation. It expanded the fundamental rights chapter. The right to information was included in the Fundamental Rights. The 19A introduced a ceiling of 30 on the number of ministers in the Cabinet. It reduced the scope of immunity of the Executive President. If the President’s actions were thought to be in  violation of fundamental rights, a petition could be filed in the Supreme Court.

Under the 19A, the accountability of the Executive was increased by including in the Constitutional Council”, representatives from Parliament  and three persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party.” A significant feature of the Constitutional Council” was that it included representation from the Opposition in parliament. The number of statutory commissions that came under the Council was expanded under 19A to include the Audit Service Commission and the National Procurement Commission.

As Groundviews put it, the 19 A required the President to act in consultation with the Prime Minister in determining ministerial portfolios and act on the advice of the Prime Minister in making appointments to the Cabinet. Further, the Prime Minister could only be removed by parliament, the President could no longer remove the Prime Minister. The term of the President was reduced and the President’s power to dissolve Parliament was restricted.

20 th.Amendment

The 20th Amendment (20A) to the Constitution was passed in October 2020. The 20A increased most of the powers of the President abolished by 19A. The 20A was a political project of Gotabaya Rakapaksa which was endorsed by 6.9 million voters in the 2019 Presidential election fought after the Easter Sunday multiple bombings in which more than 250 people died. It was the answer to the need for a strong ruler to control extremism. The ruling Sri Lanka Podujana Peramuna (SLPP) secured a landslide victory in the 2020 Parliamentary elections based on a single strong leader” platform. No wonder, the 20A was passed easily with the required two thirds majority .

The Constitutional Council (CC) was replaced by a Parliamentary Council (PC). The Parliamentary Council consists of (a) the Prime Minister; (b) the Speaker; (c) the Leader of the Opposition; (d) a nominee of the Prime Minister, who should be a Member of Parliament; and (e) a nominee of the Leader of the Opposition, who should be a Member of Parliament. There are no representations of the civil society in the PC.

The Independent Commissions introduced by the 19 A were abolished. The 20 A says: The Chairmen and members of the Commissions shall be appointed by the President. In making such appointments, the President shall seek the observations of a Parliamentary Council.” Only observations can be made.

The President enjoys complete immunity under 20A. Fundamental Rights petitions cannot be filed against the President. Article 35 of the Amendment states: While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.”

The President is empowered to dissolve parliament at his will” after two and a half years of the election of a new Parliament. Limitations imposed by the number of the Cabinet (30) and Deputy Ministers (45) by 19A were retained at the Committee Stage. The President is empowered to appoint Ministers.

The 20A has reintroduced the Urgent Bills” concept which was  abolished by 19A.  An urgent bill can circumvent the existing procedure. The President can refer it to the Supreme Court requesting its determination within 24 to 72 hours.

Dual citizens, who were not qualified for contesting elections under 19A, got the right to do so under 20A. This enabled Basil Rajapaksa, a sibling of the President and the Prime Ministere to become an MP.   The 20A enables the President to appoint any person to any office at his sole discretion without having to get the consent of parliament.

The draft 20A was challenged in the Supreme Court by 39 petitions. The court suggested some amendments in order to avoid going for a referendum. The government obliged and 20A was passed.

However, having seen the consequences of giving too much power to one man, the Executive President, a good number of MPs of the opposition and even some allies of the government, now want to bring back the 19A either fully or substantially.

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