All Eyes on 22nd Amendment | Daily News

All Eyes on 22nd Amendment

Picture by Sulochana Gamage
Picture by Sulochana Gamage

Deliberations in Sri Lanka’s Parliament will take centre stage this week as it debates the controversial 22nd Amendment to the Constitution that aims to strike a delicate balance between the powers held by the Executive and the Legislature in the form of the Executive President and Parliament respectively.

This is the latest step in a series of constitutional changes that have been enacted over the past two decades, demonstrating that both Sri Lanka’s politicians and the public have yet to accurately identify the form of Government that best serves the country, its people and its social and economic needs.

The changes first came to the fore in 2001, when the 17th Amendment was enacted during the second term of then President Chandrika Kumaratunga. The main feature of this amendment was the creation of a Constitutional Council (CC) which was tasked with making appointments to the various Independent Commissions.

Executive Presidential Powers

The 17th Amendment and the CC were seen as a move to reduce the powers at the disposal of the Executive President. The Council was to comprise of both elected representatives as well as nominated representatives who were nominated both by the President and the Opposition.

The Council was empowered to make appointments to key bodies such as the National Election Commission (NEC), the Public Service Commission (PSC), National Police Commission (NPC), Human Rights Commission of Sri Lanka (HRCSL), the Commission to Investigate Bribery or Corruption (CIABOC), the Finance Commission and the Delimitation Commission.

Despite being hailed as positive step aimed at enhancing democracy, there were obstacles in implementing the 17th Amendment. Delays, for example in forming an independent NEC led to many issues and the then Government was accused of hindering its objectives.

The next change to the Constitution came in the form of the 18th Amendment to the Constitution in 2010 by then President Mahinda Rajapaksa, who had just secured a second term of office with a massive mandate following the defeat of the Liberation Tigers of Tamil Eelam (LTTE) in May 2009.

The 18th Amendment reversed many changes brought about by the 17th Amendment. It enhanced the powers of the Executive President. The argument was that the Executive Presidency needed to be strengthened in the national interest to deal with issues such as terrorism, ignoring political bias.

Therefore, the 18th Amendment replaced the CC with a Parliamentary Council (PC) consisting of only elected Members of Parliament (MPs) and no appointed members. The inclusion of appointed members had attracted criticism because they were not responsible to any authority.

Another key feature of the 18th Amendment was the removal of the two-term limit for any individual to be elected as Executive President. It was thought that this was tailor-made for President Mahinda Rajapaksa who was in his second term of office and was riding a wave of popular support at the time.

Ironically, it was the adoption of the 18th Amendment that led to Mahinda Rajapaksa’s undoing. In 2015, after ten years as President, he ran for an unprecedented third time because he was allowed to do so by the 18th Amendment. However, he lost unexpectedly to Sri Lanka Freedom Party’s (SLFP) Maithripala Sirisena who defected to become the Common Opposition candidate.

Sirisena had campaigned on a platform of abolishing the Executive Presidency and retiring after one term in office. One of his primary and first tasks as President was to introduce the 19th Amendment in Parliament aimed at curtailing his own powers as Executive President to a great extent.

It is to President Sirisena’s credit that he did so in April 2015, just four months into his Presidency and with a Parliament where the party which opposed him at the Presidential Election, the United Peoples’ Freedom Alliance (UPFA), had a majority. Only one MP, Sarath Weerasekera, opposed the 19th Amendment.

Key changes

The 19th Amendment re-established the CC and the Independent Commissions. It reduced the term of office of both the President and Parliament to five years instead of six years. It also re-introduced the two-term limit on an individual holding office as an Executive President.

Other key changes introduced in the 19th Amendment are taking away the President’s powers to remove the Prime Minister, the President being required to act on the advice of the Prime Minister in appointing Ministers and the prohibition on dual citizens being appointed as elected representatives (MPs).

It is noteworthy that seven years later, these remain some of the key issues that are being keenly debated as Parliament reviews the 22nd Amendment. Nevertheless, despite then President Sirisena’s stellar efforts to enact the 19th Amendment, he found himself at the centre of a Constitutional crisis.

Following a deterioration in relations between President Sirisena and then Prime Minister Ranil Wickremesinghe, Sirisena sacked Wickremesinghe as Prime Minister, appointed his erstwhile rival Mahinda Rajapaksa as Prime Minister and proceeded to dissolve Parliament prematurely.

The 19th Amendment, among other provisions, had curtailed the President’s power to dissolve Parliament before four and a half years. Sirisena’s actions were thus challenged in the Supreme Court. He was found to have acted unconstitutionally and Wickremesinghe was reinstated as Prime Minister.

The next change to the Constitution came in the form of the 20th Amendment, enacted with Gotabaya Rajapaksa as President. The Easter Terror Attacks and the failure of the then President and Prime Minister, Maithripala Sirisena and Ranil Wickremesinghe to act in concert was a catalyst to this.

It was argued that the weakening of the Executive Presidency and the tug-of-war between the President and the Prime Minister contributed to intelligence and security failures that led to the Easter Attacks. Gotabaya Rajapaksa thus campaigned on a platform to strengthen the Presidency and won.

In the General Election (GE) that followed in August 2020, the Sri Lanka Podujana Peramuna (SLPP) received a near two-thirds majority and thereafter the 20th Amendment became a reality. It restored most of the changes introduced by the 18th Amendment, effectively nullifying the 19th Amendment. However, the two-term limit for a President was retained.

The President can now dissolve Parliament before the end of four and a half years and may consult the Prime Minister on appointing Ministers only if desired. The barrier on dual citizens being elected to Parliament has been removed. A PC has replaced the CC.

What is being debated this week in Parliament has been listed as the 22nd Amendment. However, there is no 21st Amendment. That is because an amendment, listed as the 21st Amendment and introduced by the Opposition Samagi Jana Balawegaya (SJB) is not being proceeded with by that party.

This is after the draft 21st Amendment was challenged in the Supreme Court. Many of its clauses were deemed unconstitutional, requiring approval at a referendum. As a result, a subsequent draft Constitutional Amendment by Minister Dr. Wijeyadasa Rajapakshe was listed as the 22nd Amendment.

Support for the 22nd Amendment reflects the current ambivalent political climate in the country. Although it seeks to diminish Presidential powers to some extent, it has the blessings of President Ranil Wickremesinghe. The ruling SLPP however appears divided on its stance on the Amendment.

mixed views

A faction of the party supports the Amendment. However, other groups within the SLPP are equally opposed to it. While the Opposition too has mixed views about the proposed Amendment, they are generally in support of the Amendment. The SJB has said it will provide conditional support.

Among the issues being contested, mostly by SLPP MPs, is the authority of the President to act independently in appointing and removing the Prime Minister and Ministers, the creation and composition of the Independent Commissions and the issue of dual citizens assuming elected office.

Although the SLPP enjoyed a near two-thirds majority in Parliament after the 2020 GE, that has now diminished with several factions calling themselves ‘independent’. As a result, while the SLPP may have lost its two-thirds majority in Parliament, it still commands a simple majority.

If this ‘core’ SLPP group votes against the proposed 22nd Amendment, the legislation will not be enacted even if all Opposition parties and so-called ‘independent groups’ from within the SLPP endorse it, because it requires a two-thirds majority in Parliament and this will not be possible. At the time of writing, Justice Minister Dr. Rajapakshe, entrusted with the task of seeing the 22nd Amendment through Parliament, is in hectic negotiations with all stakeholders in Parliament in a bid to ensure its passage but that outcome is unlikely unless certain modifications are agreed to. The 22nd Amendment came into being as a result of the recent public protests at Galle Face that called for the abolition or diminution of the Executive Presidency. However, indications are that the amendment will fizzle out and come to an abrupt end -just like the Galle Face protests did.

 


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