20th Amendment: Far reaching changes envisaged | Daily News


 

20th Amendment: Far reaching changes envisaged

Voters gave a resounding mandate to the Government on August 5, 2020. Picture by Sulochana Gamage
Voters gave a resounding mandate to the Government on August 5, 2020. Picture by Sulochana Gamage

The Government is going full steam ahead with preparations to enact the proposed 20th Amendment to the Constitution which was gazetted last week, enabling its details to become public and fuelling a robust public debate about the changes it will bring about.

Armed with the near two-thirds majority it secured at the August 5 General Election and having the support of several other smaller political parties, the Government is certain to have the 150 votes it needs to make the 20th Amendment a reality, barring a challenge in the Courts.

Stalwarts in Government were optimistic that it will be able to legislate the 20th Amendment shortly, even if it is seen as an ‘interim’ measure as more sweeping changes to the entire political system in the form a new Constitution are being planned by President Gotabaya Rajapaksa and his advisors.

The proposed 20th Amendment, in essence, repeals most of the features that were enacted by the previous Government led by President Maithripala Sirisena which were supported by the United National Front (UNF) Government in the form of the controversial 19th Amendment.

For instance, the 19th Amendment barred dual citizens from running for Parliament or for President. The 20th Amendment reverses that change and enables them to contest for both offices. This is expected to allow former Minister Basil Rajapaksa to return to Parliament on the National List.

Basil Rajapaksa is widely credited with bringing back former President Mahinda Rajapaksa to politics after he was defeated at the January 2015 Presidential Election. He is the mastermind behind the formation of the Joint Opposition (JO) at that time which led to the formation of a new political party.

Sri Lanka Podujana Peramuna (SLPP)

That party, the Sri Lanka Podujana Peramuna (SLPP) won the 2018 Local Government Elections, the 2019 Presidential Elections and the 2020 General Election, each with a clear and convincing margin. He is likely to be rewarded with a return to an important Cabinet portfolio shortly.

Also reversed is the provision in the 19th Amendment that prevents a person under the age of 35 years from running for President. Under the proposed 20th Amendment, this age has been lowered to 30 years. This is however not expected to benefit any particular individual currently in the political arena.

Another reversal of changes brought about in the 19th Amendment is in the number of Cabinet ministers. The 19th Amendment limited this number to 30 Cabinet ministers and 40 non-Cabinet ministers, unless in a ‘National’ Government. The proposed 20th Amendment removes this limit, regardless of the type of Government.

The 20th Amendment will also provide for the President to hold any portfolio of he or she wishes to do so. Under the 19th Amendment, there was a controversy as to whether the President could hold the Defence portfolio despite being Commander-in-Chief, with legal opinion divided over the issue.

In another change with significant political implications, the President will be allowed to dissolve Parliament after a period of one year after its first session. Under the current 19th Amendment, the President is barred from doing so until after four and a half years of the term of a Parliament.

This was put to the test in late 2018 when then President Maithripala Sirisena sacked then Prime Minister Ranil Wickremesinghe and dissolved Parliament. His actions were contested in the Supreme Court which determined that this was ‘unconstitutional’ (under the terms of the 19A) and annulled the dissolution.

Parliamentary Council

Arguably the most significant change proposed by the 20th Amendment is replacing the Constitutional Council with a ‘Parliamentary Council’. This was what existed under the 18th Amendment brought about by then President Mahinda Rajapaksa after his re-election in 2010.

The Constitutional Council was a ten-member council headed by the Speaker that included three civil society representatives. It was very powerful in that it ratified appointments to high posts including those in the Police, the Elections Commission, the judiciary and the Attorney General’s Department.

Under the 20th Amendment, the Parliamentary Council will be a five-member body comprising the Prime Minister, the Speaker, the Opposition Leader and two Parliamentarians nominated by the Prime Minister and the Opposition Leader. The latter two has provision to be from different communities. It will not have civil society representation.

The most significant change in the transition from the Constitutional Council to the Parliamentary Council is that the latter will not have power to ratify or make appointments on its own. It can only send its observations on the recommendations it receives for these appointments from the President.

Thereafter the President will make appointments to the Election Commission, the Public Service Commission, the Police Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission.

The President is also empowered to appoint the Chief Justice, judges of the Supreme Court, judges of the Court of Appeal, members of the Judicial Service Commission other than its Chairman, the Attorney General, the Auditor General, the Ombudsman and the Secretary General of Parliament. In making all these appointments, the President will only seek the observations of the Parliamentary Council. The Parliamentary Council has to submit its observations as regards the President’s nominees within one week. If it fails to do so, the President can proceed to make the appointments.

This change has been brought about to avoid the stalemate that resulted in the previous Constitutional Council rejecting some nominees forwarded by then President Sirisena. Several appointments, particularly in the judiciary, were deferred and these posts were left vacant for long periods of time.

Critics of the 20th Amendment have argued that the Independent Commissions introduced in the 19th Amendment were a salutary feature in providing checks and balances and should be retained. However, the Government argues that it hampered governance, resulting in crippling key institutions.

For instance, then President Sirisena was unable to appoint an Inspector General of Police (IGP) to replace Pujith Jayasundera who is under investigation for his role in not acting with due diligence regarding the Easter bomb attacks. As a result, the current IGP C. D. Wickremaratne still functions in an acting capacity.

The 20th Amendment also provides for Presidential Immunity for any act of commission or omission done by the President either in his private or official capacity. This provision is believed to allow the President to act without hindrance in the national interest in his decision making.

The proposed 20the Amendment has however retained an important change brought about by the 19th Amendment. That was to reduce the term of office of the President and Parliament to five years, instead of six years. That change has not been reversed in the proposed 20th Amendment.

Also retained is the barrier on an individual holding the office of President for more than two terms. This was removed in the 18th Amendment to the Constitution and allowed President Mahinda Rajapaksa to run for a third term in 2015. However, this condition has been included in the 20th Amendment now.

Legal challenge

The Government is keen to ensure that the 20th Amendment passes through the newly elected Parliament with the minimum of delays. Now that the Amendment has been gazetted, it will be presented to Parliament but there is also a time period for it to be challenged in the Courts.

Opposition political parties have already indicated that they will protest against the proposed amendment. How significant such a protest will be is a moot point as it does not have the required numbers in Parliament to thwart the Government’s move to introduce the changes.

Nevertheless, the main Opposition party, the Samagi Jana Balavegaya (SJB) has said that it is studying the proposed 20th Amendment with a view to challenging it in Court. The Janatha Vimukthi Peramuna (JVP) has also expressed similar critical sentiments, calling it a ‘return to the Stone Age’.

As such, there is likely to be a flurry of cases filed in Court against the proposed 20th Amendment but the only provision for which there is potential for legal challenge is the provision which allows the President to dissolve Parliament after one year. That is because it affects the people’s sovereignty.

However, the proposed 20th Amendment has already been referred to the Attorney General who has determined that it can be made into law with a two-thirds majority in Parliament without holding a referendum. This allows the Government to go ahead with its preparations to enact the new legislation.

The Government meanwhile is also going ahead with its plans to enact a new Constitution with minimum delay. The contours of the new Constitution will be defined by a panel of experts comprising legal luminaries and non-legal academics that is being headed by leading lawyer Romesh de Silva, PC.

This panel also includes other eminent persons such as President’s Counsels Gamini Marapana, Manohara de Silva, Sanjiva Jayawardena, Samantha Ratwatte and Professor Nasima Kamardeen, Dr. A Sarwehswaran, Professor Wasantha Seneviratne and Professor G. H. Peiris.

The coming weeks will see intense debate about the proposed 20th Amendment to the Constitution. The Government is likely to argue that it is required for strong governance while the Opposition will claim that it concentrates excessive power in the hands of the Executive President.

In any event, the repealing of the 19th Amendment does not come as a surprise to the nation. It was what the SLPP asked a two-thirds mandate for and that mandate was delivered overwhelmingly at the August 5 General Election and the Government will declare that it is only delivering on its promises.

 


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