President’s Powers retained through 22A

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The 22nd Amendment to the Sri Lankan Constitution has sent mixed messages to the people, with politicians from the ruling party on one side and the people and opposition political parties on the other. This is primarily due to the focus being placed solely on eliminating the executive president’s powers that was vested in the form of 20A after President Gotabaya became the President. He insisted without powers vested in him, he won’t be ‘achieving’ his target to implement the ‘vistas of prosperity’ within his five-year term. But now the entire effort to remove him from office is due to the mismanagement he engaged in while in office using the powers of the 20A. He enjoyed making decisions that could not be challenged in Parliament and that had an impact on the masses, who are now dealing with an 80.1 per cent food inflation, dollar and energy crisis, cost of living and other major issues that are affecting regular citizens’ lives.

As a result of this situation, Prime Minister Mahinda Rajapaksa and his entire Cabinet resigned. It also reinstated Ranil Wickremesinghe as Prime Minister for the sixth time and the appointment of a new set of workable Cabinet Ministers, but the 22A provision to ‘remove’ the President’s powers appears to be contested by several constitutional experts. It would be another defining moment for Sri Lankans who hope for completely reformed laws to protect and feed the people without driving them into a bottomless pit.

The 22nd Amendment Bill to the Constitution was presented to the Cabinet by Justice Minister Dr. Wijeyadasa Rajapakshe. The Cabinet approved the Bill last week and it was gazetted on Wednesday (29 June). It proposes a Constitutional Council (CC) made up of the Prime Minister, the Speaker, the Leader of the Opposition in the House of Representatives, one Member of Parliament chosen by the President and five additional individuals also chosen by the President.

The Amendment, however, does not eliminate the public outcry to revoke the powers of the Executive Presidency. The CC, which would make recommendations for all Independent Commissions, has been reinstated.

According to the Centre for Policy Alternatives (CPA), the publication of the 22nd Amendment to the Constitution Bill (the Bill) [Part II of the Gazette of 24 June 2022, supplement issued on 29.06.2022], the Bill, gazetted as the 22nd Amendment if enacted will become the 21A to the Constitution. The Bill is the government’s institutional reform response to the unprecedented mass protests and the loss of confidence both by the citizens of Sri Lanka and international partners in our system of governance.

CPA notes that the Bill 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.

In a recent interview with Ceylon Today Justice Minister Wijeyadasa Rajapakshe acknowledged he has taken firm focus on introducing the 21st Amendment to the Constitution and extracting good clauses from 19A and 20A. However, the seasoned lawyer argues that it is impossible to revoke the powers of the President since the Constitution is built on the Executive Presidency and the President can only be ousted by referendum and that there are a number problems in Parliament. Apart from that, he added that the President should resign of his own free will. He said, “The people’s worries are not about the President abusing the powers vested in him, but he is accused of not putting entire activities on track. He appointed the Cabinet with so many family members and persons who have lost the public’s respect and he appointed people like former CBSL governor Ajith Nivard Cabraal. Basically he did not take proper decisions in appointing the correct people. The President cannot do all that work but he appointed without identifying the correct people. He failed in that aspect.”

But would such statement console the public is the debate. On Thursday night (30 June) Attorney at Law Suren Fernando explained the good, bad and the ugly of the gazetted 22A Bill. He called it a ‘fraud’ to start with.

According to Fernando, 22A is a complete fraud because the President was elected under the 19A framework and most of the 19A was reversed through the 20A, which gave him more authority than he was elected with.

Following the onset of the economic and political crisis, the President stated in his 11 May address to the nation that the Government would introduce a Bill to amend the Constitution to reinstate the provisions of the 19A and then discuss the abolition of the presidency. However, the current Bill does not allow for this. Regarding many important aspects, such as the relationship between the president and the Prime Minister or the President and the parliament, while some clauses return to the 19A position, others state that reversion does not apply to the current parliament, implying the current president.  In other words, when the people demand that the president resign or that his current powers be reduced, the government says that it will do so, but not now, and that it will be effective in the next parliament, implying that we will not return to the 19A.

“Having told the people that you are going to return to the 19A and not contrary to that is ‘fraud’ added constitutional expert Fernando.

Fernando also pointed out that the original Draft tabled by Minister Wijeyadasa included some reversions to the 19A; the opposition parties disagreed, saying get the 19A or the 19A minus, but the Minister undid some of the valuable portion of the 19A. Some changes, such as the President acting on the Prime Minister’s advice, could have taken effect immediately.

He was at the helm when we were heading toward the current political and economic crisis after gaining the 20A powers and focusing more on the President’s powers, making him less accountable and responsible to the Parliament. “Basically, the concentration of power in him through the 20A created the climate in which the President made those unaccountable decisions.” Now, having done that while people were saying no, it’s not possible to continue and please go, or at the very least reduce his powers, and at that point, the president says he would agree to do it, and then not agreeing to it is the ‘worst fraud.’

He also noted that there was a significant return to the 19A position in the original 22A that Minister Rajapakshe presented to the Cabinet, except that unlike in the 19A, the President could hold portfolios even under the new Bill. Additionally, the President’s post-20A dissolution authority persisted. He said entire blame cannot be put on the Minister of Justice as the Cabinet had discussed it and obviously they had agreed to continue to the 20A position on many of the important aspects during this lifetime of parliament or the tenure of current President.

Fernando also stressed that the independent commissions, proposed under the 22A,  the CC and the independent commissions, largely reflect the 19A position, but there is a slight difference when the CC is appointed. “In the 19A framework, there were five  persons to be appointed by the President, on the nomination of the Prime Minister and the leader of the opposition which means both of them have to agree where two of them would be MPs and three of them would be outsiders. In this scenario it can be truly independent,” opined Fernando.  “Those lines were in the original 22A draft too but in the gazette version we could find that those three outsiders to be appointed are now going to be appointed by the President on the nomination of the Speaker in consultation of the Prime Minister and the Leader of the Opposition. “Since the Speaker is from the ruling party, the nominees could be based on the ruling party’s decisions. It won’t potentially be as independent as in the frame work of the 19A itself,” emphasized Fernando.

CPA said the Bill does not curtail the powers of the President nor introduces checks and balances in any meaningful manner, contrary to the demands of the people of Sri Lanka. There is absence of any genuine attempt to address the inherent problems of governance. It is far weaker than any of the versions previously proposed by the Minister of Justice (even his own private members Bill).

One reason the International Monetary Fund team that had visited Sri Lanka last week ended with an open end is the political instability and inability to assemble a responsible government to make a request for financial assistance. When the House is chaotic and a system is operating against the wishes and will of the populace, no party will step forward to help Sri Lanka. In such a situation, the responsible parties are forced to make a wise decision, and it is only possible that the decisions are centered on people rather than power.

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Some of the takeaways from the gazetted 22A to the Constitution are:

All the Commissions such as the Election Commission, the Public Service Commission, The National Police Commission, the Audit Service Commission, the Human Rights Commission of Sri Lanka, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission, the Delimitation Commission, the National Procurement Commission, other than the Election Commission, shall be responsible and answerable to Parliament.

In the discharge of its function, relating to the appointment of Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Council shall obtain the views of the Chief Justice.

The 22nd Amendment also states that all matters relating to the appointment, promotion, transfer, disciplinary control and dismissal of members of the Sri Lanka State Audit Service and pending before the Public Service Commission on the day preceding the date on which this Act comes into operation, shall, with effect from that date, stand transferred to the Audit Service Commission established by Article 153A and shall be determined by the Audit Service Commission accordingly.

Also, the Amendment says that the Parliament shall by law provide for the establishment of a Commission to investigate allegations of bribery or corruption but the

Commission to Investigate Allegations of Bribery or Corruption Act, No. 19 of 1994 shall apply, subject to the modification that it shall be lawful for the Commission appointed under that Act, to inquire into, or investigate, an allegation of bribery or corruption, whether on its own motion or on a written complaint made to it.

By Sulochana Ramiah Mohan