The Gazetted draft of the 22 nd. Amendment (22A) of the Sri Lankan constitution, which will be presented to parliament in the coming week, is a compromise between the interests of President Gotabaya Rajapaksa and Prime Minister Ranil Wickremesinghe. It is also designed to maintain the stability needed to tide over the current economic crisis and to avoid a referendum.
If passed by parliament, by the required two-thirds majority, the draft 22A will enter the constitution as the 21 st.,Amendment (21A).
Constitutional Council and Independent Commissions
In a significant change, the draft 22A re-establishes the independent Constitutional Council (CC) to replace the Parliamentary Council of the 20 th.Amendment (20A). The CC will, in turn, appoint the Chairmen and members of the various Independent Commissions (ICs) which would make key appointments and oversee the work of sectors assigned to each.
The Independent Commissions are: the Elections Commission, Public Service Commission, Police Commission, Judicial Commission, Finance Commission, Bribery and Corruption Commission, Delimitation Commission, Human Rights Commission, Audit Service Commission and National Procurement Commission.
The CC comprises the parliament Speaker (who will be its chairperson), the Prime Minister, the Leader of the Opposition, one Member of Parliament (MP) appointed by the President, 5 MPs comprising one ruling party MP, one MP from the party of the Leader of the Opposition, three non-MPs appointed by the Speaker in consultation with the Prime Minister and the Leader of the Opposition and approved by a majority of MPs in parliament, and one MP from a party other than the one represented by the Prime Minister and the Leader of the Opposition.
All appointments should reflect the pluralistic character of Sri Lankan society. Non-MPs should be persons of repute and integrity. CC members will serve for three years. Vacancies will have to be filled in 14 days.
It is the President who makes appointments to the CC. But the 22A enjoins the President to make the appointments within 14 days of receiving recommendations from the CC. If he fails to do that, the appointments will be deemed to have been made as recommended by the CC.
In case parliament is dissolved, the Speaker, the Prime Minister and the Leader of the Opposition will continue to be members of the CC till a new parliament is elected and a government assumes office.
The CC’s nominations are necessary for high offices such as Attorney General, the Governor of the Central Bank, the Auditor General, the Ombudsman, and the Secretary General of parliament. The CC shall meet at least twice in a month. The quorum is five. Its decisions should generally be by consensus or be approved at least by five members.
Through the 22A, the Prime Minister gains authority over the President, but he will not be able to exercise the new provisions during the tenure of the current (the ninth) parliament. The new provisions will come into effect only from the next of 10 th. parliament. This is a major concession to President Gotabaya Rajapaksa and the votaries of a strong Executive Presidency, like the Sinhala nationalists including the present Justice Minister and the architect of the 22A, Wijesdasa Rajapakshe.
The 22A says that the President will take his decisions on appointments to the council of ministers and the distribution of portfolios among the ministers “on the advice of the Prime Minister” and not in “consultation with the Prime Minister, where he considers such consultation is necessary” as is the case now under the 20 th.Amendment.
But there is a condition attached to this. The above mentioned stipulation will not come into play during the life of the current parliament. During the life of the current parliament, the President may “consult” the Prime Minister only if, in his opinion, such a consultation is necessary. This provision constitutes a major concession by the Prime Minister Wickremesinghe to President Gotabaya.
The other concession made to the President is that he shall be entitled to hold the Defense portfolio. In the case of the absence or exist of a minister, the President can take over that ministry, but only for 14 days.
Prime Minister’s Term of Office
The draft 22A says that the Prime Minister shall stay in office throughout the period the cabinet is in office, unless he resigns or ceases to be a Member of Parliament. However, from the time the 22A is enacted till the dissolution of the ninth parliament, the President can remove the Prime Minister from his office, if in his opinion, the Prime Minister has lost the confidence of the parliament.
Ministerial Secretaries’ Tenure
At present, the Secretaries to the Ministries quit the moment the cabinet resigns or is dissolved. But under the proposed 22A, they would not be required to quit but await the appointment of a new cabinet.
The draft 22A has the support of those who favor the present order with Gotabaya Rajapaksa continuing as Executive President and Ranil Wickremesinghe continuing as Prime Minister. They feel that the existing system has to be upheld for the sake of stability considered necessary to get desperately-needed humanitarian and financial aid from other countries. They fear that an opposition divided ideologically and politically will not provide a stable government and successfully operate the government machinery without a strong Executive Presidency which is immune to the vagaries of party politics, characteristic of the Westminster system. They feel that to solve the tremendous and unprecedented economic crisis, Sri Lanka needs the undivided attention of a strong center represented by the Executive Presidency.
The critics of the 22A however say that it is a big let-down, in the context of the public demand for a democratic system to end the system of government based on concentration of power in the hands of one person or one family and its cronies. These critics expected the 22A to be a full resurrection of the 19A of 2015. But it is only a pale shadow of the 19A, says Constitutional expert, Dr.Jayampathy Wickramaratne.
In a short note issued on Thursday, the Center of Policy Alternatives (CPA) said: ““The Gazetted 22A does not curtail the powers of the President nor introduce checks and balances in any meaningful manner, contrary to the demands of the people of Sri Lanka. In the absence of any genuine attempt to address the inherent problems of governance, this attempt at reform will only worsen the existing political and economic crisis and destroy whatever little remaining faith citizens might have in constitutional governance.”
“CPA has carefully considered the contents of the Bill and notes that the Bill does not revert the Constitution to the structure of government that prevailed under the Nineteenth Amendment (2015-19).”
Dr.Wickramaratne regrets that the President will retain his powers for the duration of the present parliament, though he is allowed to hold only the Defense portfolio under the 22A. Any other ministry could beheld only for 14 days. The experts also regrets that there is no specific provision for the representation of the small parties in the CC and to ensure the pluralist nature of Sri Lankan society.
The main opposition Samagi Jana Balawegaya’s proposal for a 21A was a radical departure from the existing 20A and called a fundamental change in the constitution including the abolition of the Executive Presidency. But as expected, the Supreme Court said that the SJB’s 21A would need a two thirds majority in parliament and a referendum.
President Gotabaya and Prime Minister Wickremesinghe felt that the country could not afford a referendum under the present economic and financial conditions and got the Justice Minister Wijedasa Rajapakshe to draft an amendment which will not require a referendum.
Given the SJB’s opposition to the 22A draft, it is unlikely to vote for it in parliament. The National Peoples’ Power led by the Janatha Vimukthi Peramuna (JVP), and the Tamil National Alliance (TNA) would also oppose it. But the 11-party group is likely to support it as it wants a strong Executive Presidency.
The million dollar question is whether the 22A will get the two-thirds majority needed for a constitutional amendment..