The Government decided to retain salient points in the 19th Amendment to the Constitution while removing its harmful clauses that has created instability and uncertainties in governance. Within a very short period after the adoption of the 19th Amendment to the Constitution, in April 2015, there were sufficient evidences of its inadequacies. The apparent need for another amendment was felt very strongly in all sections of the political divide as well as among the people in the country.
Opening the new Session of the 9th Parliament on August 20, President Gotabaya Rajapaksa announced the government’s intention to amend the Constitution. “The basis of the success of a democratic state is its constitution. Our Constitution, which has been amended 19 times, from its inception in 1978, has many ambiguities and uncertainties, presently resulting in confusion. As the people have given us the mandate we wanted for a constitutional amendment, our first task will be to remove the 19th Amendment from the Constitution.
New constitution
After that, all of us will get together to formulate a new constitution suitable for the country. In this, the priority will be given to the concept of one country, one law for all the people,” he said.
The very first meeting of the new Cabinet of Ministers appointed a sub-committee to formulate the 20th Amendment (20A), and approved repealing 19A but retain salient points including the two-term limit and the five-year term of the presidency. The Cabinet appointed a five-member sub-committee to study all Cabinet papers, notes, and drafts already presented on constitutional change. The sub-committee will be made up of Prof. G.L. Peiris, Dinesh Gunawardena, Nimal Siripala de Silva, Ali Sabry, and Udaya Gammanpila. The sub-committee is to submit their observation to the Cabinet.
A first-timer in Parliament, Justice Minister Ali Sabry has been empowered to study the 19A and make recommendations to the Cabinet regarding which elements should be carried forward in the 20A. A second sub-committee to formulate a new Constitution was approved by the Cabinet but this will be appointed later.
Cabinet Spokesman Keheliya Rambukwella said some good things from the 19th Amendment will be carried forward to the 20th Amendment. Under the 19th Amendment right to information was made a fundamental right and this will be safeguarded, he said.
With regard to the independent institutions introduced by the 19A, Justice Minister Sabry will decide which elements should be carried forth in the 20A and he will submit them in a draft 20th Amendment to the Cabinet for approval.
“We need to discuss the new Constitution with the public, the public needs to debate it. We do not need a Constitution dictated to Sri Lanka by foreign NGOs. The views of Sri Lankans must be reflected in the new Constitution,” a spokesman said.
President Gotabaya Rajapaksa, in his election manifesto, ‘Vistas of Prosperity & Splendor’ under the heading, ‘A new Constitution that Fulfills the Wishes of the People’ stated that earlier constitutional changes that were introduced to suit the requirements of certain individuals and political parties, therefore failed to reflect the people’s aspirations. “It is our desire to bring about constitutional reforms in accordance with the wishes of the people.”
During the general elections campaign, Prime Minister Mahinda Rajapaksa also reiterated the manifesto promise of amending the Constitution. Sri Lanka Podujana Peramuna (SLPP) National Organizer Basil Rajapaksa, addressing a news briefing recently said the 19th Amendment to the Constitution should be amended if the country was to move on.
The government has given top priority to fulfill this promise. “We are hoping to produce an effective Constitution to the country with the consent of all communities,” new Minister of Justice said. He said they hoped to submit this proposal to the Cabinet to get it approved after being finalized. “We are taking steps to abolish any clauses in the 19th Amendment that are detrimental to the country and amend them accordingly,” Sabry said.
He said under the proposal, the tenure of a President would remain subjected to five years, and it would maintain the position for a candidate not to contest a presidential election for more than two times.
Ali Sabry also assured that operations of the independent commissions would not be impeded whatsoever with the proposed amendment.
Since the passing of the 19th Amendment in 2015, there were 3 new amendments proposed as Private Member’s Bills in Parliament. Two of them were proposed by former Minister Wijeyadasa Rajapakshe and the other one by Anura Kumara Dissanayake, leader of Janatha Vimukthi Peramuna (JVP). The JVP proposal was to completely do away with the Executive Presidency. Explaining the proposed bill, Dissanayake said in March 2018 referred to the instability created due to differences between the then President and the then Prime Minister. “Currently there is political turmoil in the country. Similar instances in the past have seen important, socially beneficial legislation being enacted. Our proposal is for abolishing the Executive Presidency by bringing in the 20th Amendment to the Constitution, using the instability of the Government to our advantage.”
Executive Presidency
However, he admitted that the final issue to consider was the enactment process. “The approval of a two-thirds majority in Parliament is needed for this Amendment to be passed. The support of other MPs will be needed at this point. In addition, if the Supreme Court decided, we may have to hold a referendum.” Pointing out that the JVP has been calling for the elimination of the Executive since the first Executive President was appointed, MP Dissanayake asserted that the then government did not have any intention of ridding the country of the Executive Presidency.
As the JVP proposal was listed as 20A, MP Wijeyadasa Rajapakshe’s proposals were listed in Parliament as the 21st and 22nd amendments to the constitution.
The 21st amendment to the Constitution published on the 30th of December 2019, proposed an amendment to subparagraph (a) of Paragraph (6) of Article 99 of the Constitution. According to this article, a minimum of 5% of the total votes polled should be secured by a recognized political party or independent group, for a candidate from that party to be elected. Wijeyadasa Rajapakshe proposes to increase this limit 12.5 percent of the total votes polled, in any electorate.
Through the 22nd amendment to the constitution, he had proposed to strengthen certain powers of the president. The other proposals included in the 22nd amendment include provisions that state “The president shall hold the Ministry of Defence and any other Ministry.” The proposed amendment also limits the number of cabinet, non-cabinet and deputy ministers to 30.
Under the current constitution the appointments made by the President to the positions of Chief Justice, Supreme Court Judges, the Judge of the Court of Appeal and the Judicial Service Commission, including the Chairman, should be approved by the Constitutional Council.
However, according to the 22nd Amendment bill presented by Wijeyadasa Rajapakshe, the President can appoint judges after “ascertaining the views of the Judicial Services Commission”. According to the proposed amendment the president does not need the approval of the Constitutional Council to make appointments to Senior Courts. Rajapakshe has proposed for the president to also be vested with the power to remove members of the Judicial Service Commission, without the approval of the Constitutional Council.
Wijeyadasa Rajapakshe in his amendment proposes for the president to be vested with the power to make such appointments after “ascertaining the views of the Prime Minister.”
The three proposed amendments lapsed with the dissolution of Parliament on March 2, 2020.
As President Rajapaksa stated the constitutional experts will have to make a deep study before finalizing the draft for the proposed 20th Amendment. The government is confident of obtaining a two-thirds majority for the proposed Amendment and the Supreme Court will have to decide if a National Referendum will be required or mot.
However, as Education Minister Prof G. L. Peiris said, late President J.R. Jayewardene’s assuredness that his Constitution was everlasting and could not be changed, will be proven false by the ‘Gotabaya Rajapaksa and Mahinda Rajapaksa’ harmony.
The late President Jayewardene had declared that no one could change his Constitution as long as the sun and the moon existed. “JR’s assuredness was wrong. Our government obtained a two-thirds majority. No one can make laws that could not be changed and exist forever,” Prof. Peiris said.
- Asian Tribune
