It was fully expected that the Rajapaksa brothers, with Mahinda having swept the parliamentary election last month, six months after Gotabaya won the presidential election in November 2019, would embark on a programme of constitutional changes. President and Prime minister Rajapaksa have lost no time. They have the two-thirds parliamentary majority that is required. Their first priority is to get rid of the 19th Amendment, and replace it with the 20th Amendment. There are concerns, including in India, that the 13th Amendment may also be repealed.
What are the 19th and the 20th Amendments?
The 19th Amendment was brought in by the previous Yahapalanya (Good Governance) government of the United National Front of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe. It rolled back the 18th amendment that had been brought in by the preceding President Mahinda Rajapaksa.
The 18th amendment had removed the two-term bar on running for office, and centralised more powers in the hands of the President. Repealing it was an election promise made by Sirisena, who stood against Rajapaksa in the 2015 presidential election as a rebel candidate of Sri Lanka Freedom Party. With other SLFP rebels and joined by the Ranil Wickrmesinghe-led UNP, Sirisena and Wickremesinghe formed the UNF government.
One of their first acts was to bring in the 19th amendment, which restored the two-term bar on running for the presidency that was contained in the 1978 constitution; laid down the minimum age of 35 years for a presidential candidate; and also barred dual citizens from the office.
Each of these was aimed at a Rajapaksa – the first at Mahinda, who had already served two terms, the second at his son Namal, and the third at Gotabaya, who had to give up his US citizenship to contest the presidential election last year. It reduced the term of the presidency to five years from the six years laid down in the 1978 constitution.
The President also lost his power to sack the Prime Minister. It also placed a ceiling on the number of ministers and deputy ministers.
The 19th amendment also decentralised the appointments to the nine commissions including the Elections Commission, the National Police Commission, the Human Rights Commission, the Finance Commission, the Public Service Commission, among others to a Constitutional Council.
In addition to having parliamentarians, the Council also had civil society representation. This was seen as one of the most progressive parts of the 19th amendment.
The 20th amendment Bill, which was gazetted on September 2 and will be brought before the Parliament in two weeks, reverses almost everything in the 19th Amendment. It only retains from it the two-term bar on the presidency, and the five-year term.
Writing in The Sunday Times, Lawyer Kishali Pinto Jayawardena, an eminent lawyer and commentator on constitutional law called the proposals in the Bill a “fundamental shift in the nature of the Sri Lanka state” that signalled the return of the country “to 1978 in a bizarre form of ‘forward to the past’ despite the constitutional water that has flown under Sri Lanka’s bridges since then. All the history of the past tumultuous decades is discarded. A particularly virulent form of Presidentialism is underscored, arguably worse than the ancient transgressions of the 1978 Constitution.”
The 1978 Constitution was crafted by J R Jayewardene. It introduced the office of the Executive President in Sri Lanka, making it one of the most powerful of similar systems in the world. Jayawardene said famously that “the only thing that a President cannot do under this constitution is to turn a man into a woman and vice versa”.
In a strongly worded commentary, Pinto Jayawardena has said that the 20th Amendment Bill “does not merely reduce the Prime Minister to a peon and the Parliament to a cipher. Rather, it makes the entire edifice of Parliament irrelevant. In fact, banana republics do just this; dump all powers in the seat of a single individual.”
The Colombo-based Centre for Policy Alternatives has flagged the following concerns in the 20th Amendment Bill; “It seeks to remove the checks and balances on the executive presidency. In particular, it abolishes the binding limitations on presidential powers in relation to key appointments to independent institutions through the pluralistic and deliberative process of the Constitutional Council. Its replacement, the Parliamentary Council, is a mere rubber stamp of the executive, with no genuine deliberative role envisaged for its members. It is a regression to what was in place under the Eighteenth Amendment, effectively providing sweeping powers to the President to appoint individuals to key institutions, and with it, politicising institutions that are meant to function independently of the political executive and for the benefit of citizens.
It has also removed “the opportunity for citizens to challenge the executive actions of the President through fundamental rights applications has been removed, suggesting that the President is above the law. The checks on presidential power within the executive are abolished by the removal of the requirement of the Prime Minister’s advice for the appointment and dismissal of Cabinet and other Ministers. The appointment and particularly the dismissal of the Prime Minister are no longer dependent on the confidence of Parliament but at the discretion of the President. Parliament is disempowered against the executive by the restoration of the President’s power to dissolve Parliament at will at any time after the first year of its term.”
CPA has said that these changes would “seriously undermine the accountability of government, and pose a significant challenge to existing democratic norms embodied in the Constitution” while the weakening of checks and balances to the executive presidency would “adversely impact the efficient, effective, and transparent use of public funds.”
Where does the 13th Amendment come in and what is it?
Armed with a two-third majority in Parliament, the Rajapaksas may not be content only with bringing in the 20th Amendment. The fear, especially among the Tamil minorities is that the 13th Amendment will go too.
The 13th Amendment was a consequence of the Indian intervention in Sri Lanka between 1987-1990. It flowed from the India-Sri Lanka Accord of July 29, 1987. Sri Lanka is a unitary country, and the 1978 Constitution had concentrated all powers in the centre.
The agreement was aimed at finding a way forward on devolution of political powers to the then North-Eastern province, comprising the Tamil dominated areas of the island country.
Under the terms of the Accord (also known as the Jayawardene-Rajiv Gandhi agreement), the Sri Lankan parliament brought in the 13th Amendment, which provided for a system of elected provincial councils across Sri Lanka. Thus it was not just the Northern-Eastern province that would get a provincial council but provinces in the rest of Sri Lanka too. The irony was that while the North-Eastern provincial council could barely survive the violent and bloody circumstances of its birth and died after a short-lived futile struggle against both the LTTE and the Sri Lankan government, each of the remaining provinces in the Sinhala dominated areas have had elected provincial councils. The irony was all the greater as there had been much opposition by Sinhala nationalists to the 13th amendment as an Indian imposed provision.
Over the years, it gave Sinhalese politicians at the grassroots a taste of political power, governance and financial allocations even though devolution of powers to the councils was only in name as the Centre retained all financial powers. It was only well after the war ended, under much pressure from India, and after the first elections were held to the Northern provincial council in 2013. The North and the more ethnically diverse East had been demerged in 2007 and elections to the Eastern provincial Council took place in 2008.
As it came up in a specific response to the Indian-mediated Tamil demand for power sharing, there has always been a strong lobby in favour of repealing the provision. As with Article 370 in the Indian Constitution, the 13th Amendment is seen as encouraging Tamil separatism and secessionism. It is the only provision in the Constitution that is a slight nod in the direction of Sri Lanka’s Tamil national question. The demand for doing away with it comes up every now and then, especially in times such as now, of a resurgent Sinhala Buddhist nationalism.
At the weekly post-Cabinet briefing Colombo last week, the spokesman responded to a question about the 13th Amendment by denying it had been raised in the Cabinet meeting. But he said the provincial councils had not functioned for more than two years, and there was no demand from any quarter to resume their functioning.
“This system was proposed specifically for the north and the east to tackle issues there. However, it was implemented in other provinces too. The country has functioned without PCs. There is not even a protest by anyone calling for PC elections,” he declared. Asked about 13th Amendment , he added, “There was no discussion at the Cabinet meeting.”
However, the Minister for Provincial Councils and Local Government, Sarath Weerasekera, is an ardent campaigner for the repeal of the 13th Amendment and the abolition of Provincial councils. He is said to have been specially handpicked for this portfolio.
Milinda Moragoda, who is likely to be next Sri Lankan high commissioner to India – once a Ranil confidante, he is now a close adviser to President Gotabaya Rajapaksa – also has strong views against the 13th Amendment and provincial councils. In a recent interview, he described provincial councils as “su[erflous, expensive, divisive and fraught with inefficiency”.
On a visit to India earlier this year, Mahinda, who had already become the Prime Minister after his predecessor Ranil Wickremesinghe stepped down in the wake of Gotabya’s election as President, promised India that his government was committed to strengthening the 13th Amendment. When he was President, Mahinda Rajapakse expansively spoke of a 13 Plus solution for Tamil demands for political power sharing but his sincerity was in doubt.
With India up against China at the LAC in Ladakh, and mindful of neighbours wielding the “China card” against India, Sri Lanka’s Tamil polity is worried that it may not get a hearing in Delhi as before if the Rajapaksa brothers were to bury the 13th Amendment.