In a backdrop of agitations against the incumbent President heightening, the sustained debate on the need to amend the Constitution resurfaced recently with the main emphasis placed on the need to abolish the Executive Presidency.
Constitutional lawyer, President’s Counsel Thisath Wijayagunawardane said the public has called for the removal of the President, adding that an impeachment by a two-third majority is impractical in the given situation, as even those who are independent in Parliament are not in favour of ousting the President.
He added thereby that the will of the public could be fulfilled by bringing an amendment to the Constitution to the effect of abolishing the Executive Presidency, while stating that although this alone will not put an end to the crisis faced by the country, it will most definitely transfer the power of the President to Parliament.
It was also noted that since 1994, every President except for in 2010, pledged to abolish the Executive Presidency observing it to be a menace, adding however that it has not been done to date. Wijegunawardane noted that in order to overcome the ongoing economic crisis, there has to be a steady Government, as in the current state investors are discouraged from lending.
Independent Commission and Constitutional Council
By an amendment to the Constitution in 2001, Independent Commission and Constitutional Council were established and although the amendment was passed in Parliament, due to certain shortcomings in the provisions, it could not be implemented as expected.
While seven out of the nine Independent Commissions, established under the 19th Amendment, including the Right to Information Commission, were retained by the 20th amendment, the National Procurement Commission and the Audit Service Commission were abolished.
The Constitutional Council (CC) established under the 19th Amendment was replaced by a Parliamentary Council (PC) through the 20th Amendment. The Parliamentary Council consists of (a) the Prime Minister, (b) the Speaker, (c) the Leader of the Opposition, (d) a nominee of the Prime Minister, who shall be a Member of Parliament and (e) a nominee of the Leader of the Opposition, who shall be a Member of Parliament (Article 41A). No representations of the civil society were provided for in the PC while the previous CC had three civil society members.
Wijegunawardane added the PC is only a rubber stamp and does not enjoy the powers enjoyed by the CC that was brought under the 19th Amendment.
20th Amendment to the Constitution
While the 19th Amendment limited the powers of the President, the 20th Amendment was heavily criticised for vesting excessive powers in the President.
The 20th Amendment (20A) to the Constitution of Sri Lanka was passed by the 225-member Parliament with 156 voting in favour, 65 against and four abstaining on 22 October 2020. The amendment enhanced most of the constitutional powers of the President which were previously abolished in the 19th Amendment.
Under the 20th Amendment, the President has immunity while in office as President, as no proceedings shall be instituted or continued against him in any Court or tribunal in respect of anything done or omitted to be done by him in either his official or private capacity, while permitting an individual with dual citizenship to be an MP.
Further, the amendment vested in the President the power to dissolve Parliament upon the expiration of one year following the date of the General Election.
Calls for amendments or a new Constitution?
While several called to rescind the 20th Amendment to the Constitution and to reintroduce the provisions of the 19th Amendment, the need for a new Constitution was also emphasised.
Wijayagunawardane said while the draft of the new Constitution is not in the public domain, it is not possible to determine whether doing so is the best option while noting that a new Constitution is not vital at this juncture but rather that changes should be brought to the existing Constitution.
Committee on Constitutional Reforms
The report of the Committee on Constitutional Reforms was handed over to President Gotabaya Rajapaksa on 25 April. A nine-member experts’ committee, headed by President’s Counsel Romesh de Silva, was appointed to draft a new Constitution in September 2020.
SJB proposals for 21A
The SJB, on Thursday (21 April) handed over their proposals for the 21st Amendment to the Constitution to Speaker Mahinda Yapa Abeywardena in Parliament.
The Proposed amendments include:
The President will remain the Head of State and the Commander-in-Chief and he shall be elected by a majority vote in Parliament for a five-year term, renewable once.
The President shall appoint as Prime Minister the Member of Parliament who enjoys the confidence of Parliament. The President has no personal discretion in appointing and dismissing the Prime Minister; in both cases, the confidence of Parliament is the sole test.
The President shall act on the advice of the Prime Minister in the appointment and dismissal of Cabinet and other Ministers and in assigning subjects and functions to them. The Prime Minister shall be the Head of the Cabinet of Ministers.
The Prime Minister vacates office on death, resignation, on ceasing to be a Member of Parliament, on losing a vote of confidence, or on a defeat of the Budget in Parliament.
When the Prime Minister loses office in any of these ways, Parliament may elect another Member of Parliament to form a Government.
The vacation of office by the Prime Minister causes the dissolution of the Government.
The Prime Minister and the Cabinet are collectively and individually responsible to Parliament.
The Constitution will provide that upon Parliament passing a motion of no-confidence against an individual Cabinet or other Minister, such Minister shall stand removed from office.
There will be no more than 25 Cabinet Ministers and 25 other Ministers. Parliament is elected for a fixed five-year term, although it may be earlier dissolved by a Parliamentary resolution passed by an absolute majority vote.
Members of Parliament who change their allegiance from the party through which they were elected at the General Election may not accept ministerial office for the duration of that Parliament.
The jurisdiction of the Supreme Court in cases where a Member of Parliament is expelled from their party for changing party allegiance is confined to the legal merits of the expulsion. The Supreme Court shall have no jurisdiction with regard to the procedure adopted by the party in the expulsion.
The Constitutional Council is re-established, chaired by the Speaker and having as members the Prime Minister, the Leader of the Opposition, a nominee of the other parties in Parliament, and five other independent members.
The Constitutional Council shall make binding recommendations to the President for appointments to the independent commissions, and approve the President’s recommendations for appointment to key State offices.
The Right to Information Commission and the Colombo Port City Economic Commission are added to the bodies that shall be appointed on the recommendations of the Constitutional Council, and the office of the Governor of the Central Bank is added to the offices that shall be appointed on the approval of the Constitutional Council. Provision is made for the establishment of a National Security Council, which will formulate policy and monitor policy implementation in relation to national security.
Also, there shall be a Council of State to discuss matters of national importance and to provide non-binding advice to the Government. It shall be chaired by the Prime Minister, and shall include: the Ministers of Finance, Foreign Affairs, and Defence, the Speaker, the Leader of the Opposition, one Member of Parliament to represent the views of parties other than that of the Prime Minister and the Leader of the Opposition, the Attorney General, and twelve other independent members who are not Members of Parliament, chosen to represent fields of expertise in business, economic, political science, constitutional law, international law and relations, and science. In the appointment of the independent members, regard shall be had for reflecting Sri Lanka’s pluralism, including gender diversity and youth inclusion.
Proposal put forward by BASL
The BASL also proposed that the Government immediately introduce the 21st Amendment to the Constitution by repealing the provisions of the 20th Amendment and restoring the 19th Amendment.
They said in doing so the present number of Court of Appeal and Supreme Court Judges should remain intact and the introduction of the provisions of the 19th Amendment should result in the re-establishment of the Constitutional Council, the Independent Commissions which existed under the 19th Amendment whilst enhancing their financial independence, transparency and accountability.
They said in addition to the provisions of the 19th Amendment, the 21st Amendment should stipulate that, the appointments of the Governor of the Central Bank of Sri Lanka and the Monetary Board should also be done with the approval of the Constitutional Council.
Also, the appointments of the Secretaries to the Ministries, Governors, Ambassadors and Heads of Missions to be done on the advice of the Prime Minister in consultation with the Cabinet of Ministers and also Presidential Pardons should be given according to the recommendation by a body established by law, appointed by the President on the recommendation of the Constitutional Council.
Upon enactment of the 21st Amendment to the Constitution, all Secretaries to Ministries to be appointed and all independent Commissions other than the Judicial Service Commission be reconstituted. The BASL also proposed that the President should not hold any portfolio (as stipulated by the 19th Amendment to the Constitution).
Abolition of the Executive Presidency as early as possible, but not later than 15 months. The amendment to that effect should be passed in Parliament no later than 30 November 2022 and must set the operative date by which the Executive Presidency will be abolished. The Executive Presidency to be replaced by a Parliamentary form of Government, where the Prime Minister, as the head of the Government and the Cabinet of Ministers is accountable to Parliament.
Establish an Interim Government of National Unity consisting of 15 Cabinet Ministers. The Prime Minister to be a Member of Parliament who is able to establish a consensus, among all political parties recognised by the Speaker in Parliament, on the national economy and to enact necessary reforms. If there is no Member of Parliament who meets this criteria due to the exigencies of the situation, a vacancy created by the resignation of a National List MP may be used to facilitate the entry into Parliament of an individual who meets this criteria, where there is bi-partisan consensus to appoint a person who is not presently a Member of Parliament as the Prime Minister, even if such individual’s name did not appear in the original List submitted to the National Elections Commission.
For the Interim Government, in consultation with all relevant independent, apolitical Professional/ Trade/ Civil Society organisations, to appoint an independent Advisory Council consisting of 15 qualified professionals from disciplines corresponding to the 15 Ministries or relevant to the national economy. All major policy decisions of the Government to be taken in consultation with the Advisory Council in a transparent manner.
The Cabinet of National Unity shall prepare a Common Minimum Programme (CMP) in consultation with the Advisory Council. The CMP will be tabled in Parliament for its approval and implementation of the CMP will be the responsibility of the Cabinet of National Unity. The CMP should lay special emphasis on caring for the most vulnerable people of Sri Lanka at this time.
The CMP shall include the abolition of the Executive Presidency and also the BASL proposes a budget presented by the Interim Government be based on the CMP.
The Government of National Unity will be for a maximum period of eighteen (18) months and a further six weeks as a caretaker Government to oversee elections. At the conclusion of eighteen (18) months Parliament will be dissolved and a General Election will be held at the expiry of six weeks. The Government of National Unity will cease to exist at the conclusion of the General Election.
Thereby it is evident that a major call has been in favour of restoring the 19th Amendment to the Constitution as opposed to the other amendments in view of limiting the powers of the President while the abolishment of the Executive Presidency has also been focused on.
BY Faadhila Thassim