Reducing Presidential Powers

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With the Supreme Court verdict that the proposed 21st Amendment to the Constitution tabled by SJB Sajith Premadasa requires approval at a national referendum in addition to the two-thirds majority in Parliament, the 22A presented to the Cabinet by Justice Minister Wijayadasa Rajapakshe is set to be presented as the 21A instead.

The Supreme Court pointed out that to amend fundamental clauses of the Constitution will require the approval of the people at a national referendum. Hence, the SJB proposal to abolish the Executive Presidency is not possible without a national referendum.

In contrast, Justice Minister’s 22A has been carefully drafted to ensure its adoption skirting the referendum requirement. At the same time it meets the demands of devolving some of the powers of the Executive President to Parliament. Some of the salient features of the proposed bill are establishment of a National (Constitutional) Council and 9 independent commissions, disqualifying dual citizens from Parliament once Bill comes into operation and granting more powers to Commissions to Investigate Allegations of Bribery or Corruption.

The nine independent commissions to be appointed are the Election Commission, the Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission of Sri Lanka, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission and the National Procurement Commission.

All members to the Commissions can be appointed by the President only on a recommendation of the Constitutional Council once the Bill comes into operation.

The Constitutional Amendment makes provision for Parliament, by law, to establish a Commission to investigate allegations of bribery or corruption and it will be empowered to institute measures to implement the United Nations Convention against Corruption and any other International Convention relating to the prevention of corruption, to which Sri Lanka is a party. The proposals for the 22nd Amendment to the Constitution were put forward to cut down on the powers of the Executive Presidency currently held by President Gotabaya Rajapaksa. The President will continue to hold the portfolio of Minister of Defence but he is able to exercise the duties and functions of any other Minister of the Cabinet only for a period of 14 days provided such a subject has not been assigned to another person.

Some of the provisions of the Bill will come into operation only after the end of the term of this Parliament.

The Bill was published in the Gazette on the order of Justice Minister Wijayadasa Rajapakshe and will be presented to Parliament within seven days.

The Constitutional Amendment is expected to empower Parliament over the executive President and annul the 20A to the Constitution, which had given unfettered powers to President after abolishing the 19th Amendment.

Under the 22A, the President, the Cabinet of Ministers and the National Council will be held accountable to the Parliament. Fifteen Committees and Oversight Committees are also accountable to Parliament.

The Cabinet of Ministers has approved the proposal to gazette the 22nd Amendment to the Constitution and to present it to the Parliament.

Although, there is some truth in the criticism that the amending the Constitution would not solve the current economic crisis, the aims of the proposed 21st Amendment is to ensure political stability and to achieve competent, efficient, transparent and accountable government, which is an essential requirement for the economic recovery of the country. The proposals embedded in the 21st Amendment draw heavily on the 19th Amendment to the constitution. The passage of 21A Bill depends on broad support in parliament across party lines. Due to the current political unrest and the pressures from the street will ensure the support of most parliamentarians as they would be extremely be cautious about dismissing the amendments demanded by the majority of voters.

What is necessary is to establish a proper balance between the executive, legislature and judiciary and ensure accountability. The 21A is designed to make Executive President is accountable to the parliament and that would be a healthy sign for democratic governance.

The Executive Presidency cannot be abrogated without the approval of the people through a referendum and hence, the 21A is aimed at transferring some of powers of the executive president to parliament and to strengthen the legislature. Such a measure would answer at least some of the demands of the current people’s agitations.

By Sugeeswara Senadhira