Urgent need to divide executive power without resorting to a referendum
Posted on June 3rd, 2022

By Sugeeswara Senadhira/Daily News

Colombo, June 3: The draft 21st Constitutional Amendment bill is due to be presented to the Cabinet on June 6. Justice Minister Dr. Wijeyadasa Rajapakshe has been entrusted with the task of incorporating the valid suggestions made by party Leaders to ensure that it has smooth sailing in parliament.

Although there is some truth in the criticism that amending the constitution will not solve the current economic problems overnight, the aim of the proposed 21st Amendment (21A) is to ensure political stability and to get a competent, efficient, transparent and accountable government, which is an essential requirement for economic recovery as well.


Several political parties have made proposals with regard to the 21A  but some of them will require a National Referendum in addition to a 2/3rd majority in Parliament. Most political parties have agreed that it will not be possible to hold a General Election immediately due to the prevailing economic situation in the country as an election costs more than Rs.1 billion without counting propaganda/campaign costs.

The main Opposition, the Samagi Jana Balawegaya (SJB), has presented a five-point proposal that includes a clause saying that the President cannot hold any Ministerial post(s), appoint all Members of the Monetary Board (not just the Governor of the Central Bank of Sri Lanka) based on the recommendations of the Constitutional Council (CC), establish an independent National Priority and Evaluation Board” to evaluate and prioritize development projects around the country, make it mandatory for the President, the Prime Minister, all MPs, Local Government Members and Councilors, and Provincial Governors to declare their assets, and enact provisions to nationalize/retrieve assets stolen from the country.

Meanwhile, the clause proposed by Minister Dr. Rajapakshe to bar Dual Citizens from entering Parliament has run into opposition from some members of the ruling Sri Lanka Podujana Peramuna (SLPP).

Constitutional changes

Reportedly, the SLPP members insisted at the Government’s Group Meeting that bringing about economic stability and easing the people’s woes should be prioritized instead of expending energy on constitutional changes at this stage. Among the MPs who spoke against the 21st Amendment are Chintaka Mayadunna, Dr. Sarath Weerasekara and Dr. Nalaka Godahewa.

However, President Gotabaya Rajapaksa emphasized that it should be incorporated into the Constitution. Prime Minister Ranil Wickremesinghe also spoke in favor of it. Tourism Minister Harin Fernando, MP Nimal Lanza and others opined that it should be enacted in keeping with public sentiments. MP Lanza said public opinion is now in favor of such constitutional changes and it should be respected.

The proposals embedded in the 21st Amendment draw heavily on the 19th Amendment to the constitution which was enacted by the Yahapalanaya Government.

The passage of 21A Bill depends on broad support in Parliament across party lines. The current political unrest and the pressure from the street will ensure the support of most parliamentarians as they would be extremely cautious about dismissing the Amendments demanded by the majority of voters in Sri Lanka.

A powerful Constitutional Council (CC) and Independent Commissions were established under the 19th Amendment to ensure checks on political interference and on public administration. Meanwhile, the Janatha Vimukthi Peramuna (JVP) has also presented seven key proposals with regard to the 21st Amendment.

However, some major Amendments proposed by the Opposition will require a National Referendum. When the petitions filed against the 21st and 22nd Amendments were taken for hearing at the Supreme Court, the Attorney General said that if the 21st Amendment to the constitution is to be passed, it must obtain the approval of the people in a Referendum. The petitions want the Apex Court to rule that some of the provisions contained in the Private Members Resolutions of the 21st and 22nd Amendments to the Constitution presented to Parliament by the General Secretary of the SJB Ranjith Madduma Bandara and Minister Dr. Rajapakshe are unconstitutional and must be approved by a two-thirds majority in parliament and a public Referendum.

The petitions seeking a verdict were taken up for hearing before a three-Judge Bench comprising Chief Justice Jayantha Jayasuriya, Justices Janak de Silva and Arjuna Obeysekera. The petitions were filed by a group including Attorney-At-law Nuwan Ballanthudawa, a member of the Central Committee of the Patriotic National Front, Dr. Gunadasa Amarasekara and Col. Anil Amarasekera on behalf of the United National Organisation.

During the hearing, the Additional Solicitor General stated that Justice Minister Dr. Rajapakshe had informed the Speaker that the 22nd Amendment, which had been tabled in Parliament as a Private Member’s Motion to reduce the powers of the Executive Presidency, would be withdrawn.

Minister Dr. Rajapakshe said that the 21st Amendment to the constitution has been drafted so as to avoid a Referendum and that a Parliamentary Committee (PC) should be appointed in the future to draft a new Constitution.

Earlier this week, Dr. Rajapakshe informed the Most Ven. Chief Prelates of four Buddhist Nikayas that the Constitutional Amendment is necessary to restore political stability and rebuild the country’s economy. The Minister said that Independent Commissions will be empowered by the Amendment while the Procurement Commission and the National Audit Commission which were abolished by the 20th Amendment will be re-established.

He also said that Dual Citizens will be disqualified from holding parliamentary seats once the Amendment is passed and said no MP will be able to oppose this Bill as it is supported by the people.

Ven. Dodampahala Chandasiri Mahanayake Thera said that the views of scholars and intellectuals should be sought for the preparation of this Bill and that the approval of the Sri Lanka Amarapura Maha Sangha Sabha should be given.

The SJB has offered conditional support to the 21A Bill. As we informed you at the Party Leaders’ meeting on May 27, the SJB will support the repeal of the 20th Amendment to the Constitution and bringing back the provisions of the 19th Amendment,” SJB General Secretary MP Ranjith Madduma Bandara said in his letter to Prime Minister Ranil Wickremesinghe.

However, we have noted that some of the provisions in the 19th Amendment to the Constitution that limit the Executive President’s powers are not included in the draft Bill presented by Justice Minister President’s Counsel Dr. Wijeyadasa Rajapakshe.”

Power structure

Even those who want the Executive Presidency abolished have apprehensions about the power structure that would replace the current system. Doubts prevail about a possible scenario that might  emerge if and when the Executive Presidency is scrapped. One such strong contention is that the Executive Presidency is needed to prevent separatism or any possible religious extremism. Some others say that as long as the powers are devolved to the Provincial Councils under the 13th Amendment, it is essential to retain the Executive Presidency and the Unitary Constitution.

Some others challenge these arguments by pointing out that under the Westminster System of Government, Prime Minister S.W.R.D. Bandaranaike handled the 1958 ethnic riots and Governor General Sir Oliver Goonetilleke and later Prime Minister Sirimavo Bandaranaike defeated the 1962 coup and crushed the JVP’s first insurrection in 1971 without the powers of the Executive Presidency.

What is necessary is to establish a proper balance between the Executive, the Legislature and the Judiciary and ensure accountability. The 21A is designed to make the Executive President accountable to parliament and that would be a healthy sign for democratic governance.

The Executive Presidency cannot be abrogated per se without the approval of the people through a Referendum and hence, the 21A is aimed at transferring some of the powers of the Executive President back to Parliament and to strengthen the Legislature in the process. Such a measure would answer most of the demands of the current people’s agitations.

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