Sri Lanka: Which 21stAmendment? What can bring sanity to the system?

In the case Sri Lanka, the powers, functions, and practices of the Executive President can be considered at the heart of the present crisis.

by Dr Laksiri Fernando 

Is there any rationale in attempting to amend the constitution during a severe economic crisis in the country? Different people give different answers to the question. Those who brought the 20th Amendment which has strengthened the powers of the President directly and indirectly attempt to scuttle any amendment. The ex-Minister of Finance, Basil Rajapaksa, is supposed to be leading this faction within the majority party in Parliament, Sri Lanka PodujanaPeramuna (SLPP). Can anyone have any doubt where the President, Gotabaya Rajapaksa, stand on this issue? He obviously cannot be like Maithripala Sirisena when the 19th Amendment was brought in. 

Then there are people who believe that the presently promoted 21st Amendment is not enough. It aims to cut some wings of the President, but not all. Eran Wickremaratne has expressed this view to the Sunday Island (5 June 2022). This is the same view expressed by Ranjith Madduma Bandara as the Secretary of the Samagi Jana Balawegaya (SJB), under whose name there is a written proposal before Parliament. Advocacy is for a systemic change and abolition of the presidential system altogether. One strong argument from this faction of people is that ‘President’s arbitrary powers were at the heart of the present economic crisis which cannot be ignored by anyone. Apart from the SJB, the other parties like the JVP and TNA seem to hold the same view. 

The Bar Association is another protagonist. They say, ‘the new amendment will let President Gotabaya Rajapaksa keep most of his powers, including power to hold Ministries, assign subjects to himself, appoint whom he wants as Secretaries, dissolve Parliament early and unlimited powers to pardon anyone.’

Although not expressed in written form or through interviews, this is the same sentiments expressed by the general opinion of the protest movement at Galle Face, Aragalaya (Struggle). They instinctively believe that there is not much point in having a revised role for the President, while Gotabaya Rajapaksa is at the helm of that position. The slogan ‘Go Gota Go’ signify this sentiment. 

Two Drafts 

In the web page devoted to ‘constitutional amendment proposals’ in the Parliament website, there are two drafts provided,strangely the first as the 21st Amendment and the second as the 22nd Amendment, although both aiming for the same purpose. They should have been easily named as ‘21st drat Amendment 1’ and ‘21st draft Amendment 2.’

The first draft is in the name of Samagi Jana Balawegaya and the second is in the name of an Independent Group of MPs, although it is well known as what the present Minister of Justice, WijayadasaRajapaksha,has proposed. 

Both drafts declare “In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail,” but no Sinhala texts of the proposals are provided. Although Sinhala is the mother tongue of many (including mine),for the purposes of legislation and legal enactments, English should have been the language of operation. Most of the legal and constitutional principles and terms are in (or borrowed from) English, and it is with difficulties that they are translated into Sinhala or Tamil. 

It is said that a new draft was discussed at the Cabinet meeting on the 6thof May, however, nothing is approved. The decision is to distribute the draft among the political leaders in Parliament and with their viable proposals a new draft to be approved by the Cabinet within two weeks. Only new addition appears to be the prohibition of dual citizens to come to Parliament and hold office. 

A Comparison 

While Rajapaksha proposal is limited to reestablishing independent commissions, the SJB proposal is far reaching with the objective of converting the present presidential system into a parliamentary democracy. Undoubtedly this requires a referendum in addition to two thirds majority in Parliament. Beginning with amending Article 4 there are several other articles and paragraphs proposed to be amended to achieve this objective. 

Article 30 is proposed to amend, as it says, “the deletion of the words “the People” in paragraph (2) of Article 30, and the substitution therefore of the words “Parliament, in the manner provided in paragraph (3) of this Article.” Accordingly, paragraph 3 of the article is the mechanism through which a President is elected by Parliament according to this proposal. It clearly says, 

“A citizen qualified under Article 88 and not disqualified under Articles 89 or 92 shall be elected [as President] by a simple majority of the Members of Parliament, within four weeks of its first sitting, by secret ballot, in accordance with such procedure as Parliament may by law provide.” 

One advantage of Rajapaksha proposal is that it might be approved by a two thirds majority of Parliament, like the 19th Amendment or the 20th Amendment without a referendum. It focuses on amending the Chapter VIIA(Constitutional Council) and Chapter XIXA (National Procurement Commission) of the Constitution. The name of ‘Constitutional Council’ in both drafts is a misnomer which has nothing directly to do with the constitution, but appointments to high positions and various other commissions assign with the same function. It could be better named as ‘Higher Appointments Council.’  

In the case of SJB proposal there are several other chapters proposed to be amendedor inserted with the intention of overall systemic change. In addition to the Constitutional Council and the National Procurement Commission, a revision to the Chapter VIII on the ‘Executive: The Cabinet of Ministers,’‘A Commission to Investigate Allegations of Bribery and Corruption’ (proposed Chapter XIX-A), ‘National Security Council’ (proposed chapter XIX-C) and a ‘Council of State’ (proposed chapter XIX-C) are proposed. 

What is Valid? 

There is no valid evidence to argue that when a country is in an economic crisis, no political or constitutional reforms should be undertaken. On the contrarily many experiences in Latin America show that political and constitutional reforms go hand in hand with economic reforms. Political reasons sometimes can be the obvious root cause of economic problems. Most of the democratic countries consider ‘good governance’ as a necessary precondition for aid and assistance.  

In the case Sri Lanka, the powers, functions, and practices of the Executive President can be considered at the heart of the present crisis. Who ordered the chemical fertilizer ban in Sri Lanka? Of course, the whole crisis cannot be blamed on one person. There is a better understanding today that high level bureaucrats in the Treasury, Central Bank, Customs and Ministries are responsible for the crisis. But who has appointed them based on political/personal loyalty without considering professional and other qualifications? It is the President. 

WijayadasaRajapaksha has expressed a ‘fear’ that abolition of the Executive Presidency hastily will plunge the country into anarchy’ (The Island, 8 June 2022). Of course, there should not be a haste. This is a matter discussed for a long period. In 2000, under ChadrikaKumaratunga, there was a proposal for a new constitution with the abolition of the presidential system. If the presidential system is justified because of the provincial council system, as Rajapaksha argues, people in this country today faces the negative consequences, the President not holding elections for these Provincial Councils if he is the chief. 

Rajapaksha proposed amendment does not change the role of the President in appointments although independent commissions are established. The following is one example. 

“41C. (1) No person shall be appointed by the President to any of the Offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.”

It may appear restrictive of presidential powers as it starts with the phrase ‘no person shall be appointed by the President.’ Only condition is that the approval of the Council, but again ‘on the recommendation made to the Council by the President.’

Of course, the electoral system is also at fault along with the presidential system to the present predicament in the country. Electoral system also should be changed. Many of the defects are at the representation level, MPs becoming separated from the voters, and with the orientation towards corruption. These are some reasons for an electoral change. 

There can be some hesitation on the part of the people, tired because of the economic difficulties, to go for a referendum. However, it will soon change if they realize the opportunity to change the system, or to send Gotabaya home. This is my conclusion.