By P.K.Balachandran
Colombo, June 22: With the Sri Lankan Supreme Court ruling that major parts of the 21st constitutional Amendment (21A) proposed by the main opposition party, the Samagi Jana Balavegaya (SJB), are inconsistent with the constitution, and the cabinet approving an alternative draft presented by Justice Minister and Constitutional Reforms, Wijedasa Rajapakshe, Sri Lanka is set to revive the system prevailing under the 19 th.Amendment (19A) between April 2015 and October 2020.
The 19A had moderately decreased the powers of the Executive President and increased the powers of the Prime Minister and the parliament. But it was repealed and replaced by 20A in October 2020 taking the country’s constitution back to the pre-2015 era which was marked by an all-powerful Executive Presidency.
The adoption of Wijedasa Rajapakshe’s draft means that there will be no need to go for a referendum. The Supreme Court, in its determination, had said that several clauses in the SJB’s draft would require a two-thirds majority and a referendum, to be considered constitutional. Sri Lanka is not in a position to go for a referendum now in the midst an unprecedented economic, political disunity and daily demonstrations of public anger.
The Supreme Court’s determination read out in parliament by Speaker Mahinda Yapa Abeywardena on Tuesday, said that the provision for electing the President by the parliament instead of the public, would need a two-thirds majority in parliament as well as a referendum. The envisaged provisions for the Constitutional Council, the National Security Council, the expulsion of MPs, the dissolution of parliament, and the mandate of Provincial Governors would also require a special majority (two-thirds) followed by a people’s referendum ,the court said.
The SJB’s constitutional amendment sought to abolish the Executive Presidency and revert to a Westminster-style parliamentary system which existed before 1978. The President would be a ceremonial office, and executive power would be with the Prime Minister who has to have the backing of a majority of MPs. However, the President would continue to be Head of State and Commander in Chief of the Armed Forces. The person elected as President could not hold office in, or be a member of, any political party so long as he holds the office of President. The President could be removed by a No-Confidence Motion passed in parliament by a simple majority.
Executive power would be exercised by the Prime Minister and the Cabinet, who are responsible and answerable to parliament. The PM would be the Head of Government and the Cabinet.
The Constitutional Council (CC) established by the 19th Amendment will be reestablished. The CC would recommend appointments to the Independent Commissions, the posts of the Chief Justice and Justices of the Supreme Court, President and Judges of the Court of Appeal and key state offices. The amendment gave constitutional recognition to the National Security Council (NSC).
The SJB draft envisaged the establishment of a Council of State. It would be a forum through which the public could provide non-binding advice to the government.
Wijeyadasa Rajapakshe Draft
Details of the draft submitted by Wijayadasa Rajapakshe to the cabinet, which it approved, are not public yet. But his original draft submitted by him as an MP did not seek to abolish the Executive Presidency. It brings back the Constitutional Council (CC), which would include nominees of the Sri Lanka Organization of Professional Association, the Sri Lanka Chamber of Commerce and a professor of a State University nominated by the University Grants Commission. The CC would recommend appointments to all Independent Commissions, the posts of Chief Justice and Justices of the Supreme Court, President and Judges of the Court of Appeal and key State offices. There would be in addition, an Audit Services Commission and a Procurement Commission to improve transparency and accountability and help reduce political influence and corruption.
The President would no longer be able to appoint or remove Ministers and Deputy Ministers or change their appointments or assignments but would have to go “on the advice of the Prime Minister.”
After cabinet approval, Rajapakshe’s Bill was sent to the Attorney General and the legal Draftsman. It would tabled in parliament after due process.
Justifying the retention of the Executive Presidency, albeit in an attenuated form, Rajapakshe said in an interview that the country would be thrown into anarchy if the institution was replaced immediately and carelessly.
The Ministry of Defense would remain with the President as he or she would also be the Commander-in-Chief. “You can’t have two people – one holding the office of the Ministry of Defense and another being commander-in-chief. This was determined by the Supreme Court in 2003; that is how former President Chandrika Bandaranaike took over the Ministry of Defence from Tilak Marapana,” Rajapakshe told The Morning newspaper.
The Bar Association of Sri Lanka, which has been showing a lot of interest in constitutional change, observed that the proposed amendment would 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.
In a tweet, the BASL’s President Saliya Peries said: “The BASL’s concerns on the draft 21st amendment shared with the President, PM and MoJ. It restores the CC and Independent Coms. Concerns on President being able to hold onto subjects and functions; Powers relating to dissolution of Parliament; Composition of CC.”
However, all comments on the bill will be hypothetical because the details will be known only when it is gazetted and tabled in the House.
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