With Fully-fledged Executive Powers in Hand Where Would the President Take the Country?
By Gagani Weerakoon
President Gotabaya Rajapaksa last week made two ‘polite requests’ to the public. One was to refrain from inviting him to any private function, be it a wedding, prize-giving or parties as such invitations may hinder his priority to attend to vital national issues.
The second was not to pressure him to change appointments that he or the Government has made as he has no intention of making any changes in the appointments made recently in the face of lobbying from some quarters.
In a Media statement, the Presidential Secretariat said that pressure “is being mounted against certain appointments recently made by the President and the Government.”
Even though it did not specify whether these appointments were for Ministerial positions, Secretaries to Ministries or heads of statutory bodies, this came in the wake of mounting criticism against appointing former Minister Milinda Moragoda as the Sri Lankan High Commissioner to India with Cabinet ranking.
“All these appointments were made with the utmost consideration of our country’s sovereignty, national security and implementation of the Government’s policy statement,” the Secretariat quoting the President said.
The President has emphasised that these people have been chosen “after careful scrutiny of loyalty to the nation, qualifications and background of these individuals, so that policies of the Government can move forward in a successful manner.”
It also asked lobbyists to stand-down as the President is of the view that “expressing opinions against these appointments will not only make the appointees unable to carry out their duties and responsibilities properly but also will weaken the Government’s process.”
Meanwhile, the 20th Amendment to the Constitution was gazetted on Thursday (3), vesting in the President the power to dissolve Parliament upon the expiration of one year following the date of the General Election, as opposed to the 19th Amendment where the President could only dissolve Parliament after four-and-a-half years following the date of the General Election.
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 either in his official or private capacity.
Further, an individual with dual citizenship cannot be a Parliamentarian under the 19th Amendment whereas the 20th Amendment permits an individual with dual citizenship to be an MP.
The Speaker and the Leader of the Opposition cannot be changed until the reigning Parliament is dissolved and a new Parliament is summoned.
Under the 19th Amendment, while the Constitutional Council is replaced with the Parliamentary Council consisting of the Prime Minister, the Speaker, Leader of the Opposition, a nominee of the Premier and a nominee of the Opposition Leader, whereas under the 20th Amendment , the President is also vested with the power to appoint the Chief Justice, the President of the Court of Appeal, Judges of the Supreme Court and the Court of Appeal, the Attorney General, the Auditor General and Commanders of the Tri-Forces.
According to the 20th Amendment, the minimum age limit for a Presidential candidate has been reduced from 35 to 30. While seven out of the nine Independent Commissions established under the 19th Amendment including the Right to Information Commission have been retained, the National Procurement Commission and the Audit Service Commission have been abolished.
The Cabinet has also approved the appointment of a nine-member Expert Committee to prepare preliminary drafts for a new Constitution headed by President’s Counsel Romesh De Silva.
The Cabinet took this decision after taking into consideration the proposal made by Minister of Justice, M.U.M. Ali Sabry PC on 19 August at the Cabinet meeting, to appoint an Expert Committee to prepare preliminary drafts for the new Constitution.
The Committee also includes President’s Counsels Gamini Marapana, Manohara de Silva, Sanjeewa Jayawardena, and Samantha Ratwatte. Legal academics include Professors Nazeema Kamardeen, Wasantha Senevirathne, Dr. A. Sarveswaran and Prof. G.H. Peiris.
Meanwhile, Cabinet Co-Spokesman, Attorney-at-Law Udaya Gammanpila, briefing the Media on decisions taken by the Cabinet, claimed that as there was an issue in the 19th Amendment to the Constitution as to who was the Head of Government, this had prompted the Cabinet on 19 August to advice the Legal Draftsman to draft the 20th Amendment to the Constitution as a temporary measure to avoid the shortcomings faced by previous UNF-led Government appointed in 2015 to be effective until a new Constitution is promulgated.
While the Bill for the 20th Amendment was presented to Cabinet by the Minister of Justice, Gammanpila noted that the Cabinet had also paid attention to the Attorney General’s opinion: “The Bill was compatible with the 13th Amendment and that it could be passed by not less than two thirds of Members of Parliament in terms of Article 82(5) of the Constitution.”
He said the Cabinet had approved the publishing of the Bill in the Government Gazette and for the Justice Minister to subsequently table it in Parliament after a lapse of two weeks from the date of gazetting. Subsequent to this, during the ensuing one week, the first reading would take place and any citizen may challenge the Bill before the Supreme Court (SC). Once the SC gives its special determination on the Bill and the Speaker in Parliament reads it, the debate in Parliament can commence and conclude with a vote.
Amendments to the Constitution are good, as even the American and Indian Constitutions themselves have been amended on several occasions, Gammanpila said.
Fielding questions regarding the many amendments to the Constitution which had been made over the years and the pending 20th Amendment to the Constitution, which was to be introduced, Gammanpila added that the Constitution was the reflection of the aspirations of the people, and noted that people change, therefore there should be the ability to make the necessary changes to the Constitution accordingly.
Leader of the Janatha Vimukthi Peramuna (JVP) led Jathika Jana Balawegaya (JJB), Anura Kumara Dissanayake said that in a nutshell, the proposed 20th Amendment to the Constitution could be described as an attempt made to forcibly drag the nation from accepted and respectful civilization to an uncultured society.
The 20th Amendment to the Constitution is undemocratic, and dangerous, and its consequences would be untold if not checked by the Supreme Court by way of petitions being filed against its ratification, Dissanayake noted, but added that even though they vehemently oppose the 20th Amendment to the Constitution, they have thus far not decided whether to petition the SC regarding the ratification of the 20th Amendment to the Constitution.
“This is because the Justices in the Court of Appeal know for sure that the only way they could seek entrance to the SC is through the President and being in his good books. All Justices in the SC also can aspire to become the next Chief Justice (CJ) only if they curry favour with the incumbent President. Due to these reasons, we have to seriously mull whether there would be any tangible reason for petitioning the apex Court in this regard,” he opined.
Addressing a media briefing held at the JVP headquarters on 4 September, he added that the 20th Amendment to the Constitution Bill will portend disaster and lead to numerous complications to the people.
He further claimed:
“This is because the post of the Executive President has been turned into an all-powerful and all-encompassing one. The President is now able to dissolve the Parliament after a lapse of 12 months since its inauguration.
“The President has also been entrusted with the power to make appointments to the post of the CJ, the Justices to the SC, the Court of Appeal, and the Attorney General. In other words, the independence of the Judiciary will be seriously imperilled by this new Amendment.
“Also, the President now has the power to control the Cabinet of Ministers according to his dictates and this is akin to what was done by tribal leaders in the past functioning as dictators. Also, the provision that the number of Ministers was limited to 30 has been removed, and if it is ratified, any number of people could be appointed as Ministers, State Ministers or Deputy Ministers. The President can now take over any number of Ministerial posts under his command and this is not a progressive move. It is now left to be seen as to how the present Prime Minister would react to these changes as his powers have been seriously curtailed.
“The President through the new Amendment could appoint members to all Commissions according to his wishes, other than for the post of the Chairman of the Judicial Service Commission. The independent Commissions have now been brought under the control of the President and it is anybody’s guess as to what its independence would be like in the future.
“This Government has also now allowed those holding dual citizenship to enter the Legislature. Isn’t this making a mockery of the laws of this nation? It has to be seriously questioned whether the people granted a two-thirds majority to this regime to make this country the laughing stock of the rest of the world. The President is no longer accountable to the Legislature and he will have immunity from the law for his actions.
The Government of the day would also be able to table sudden Acts according to their wishes. As a result, after seeking Cabinet and SC approval, within a 24-hour period it could be ratified in the Parliament. Through this mechanism, any Acts that could be disputed by the people could be surreptitiously ratified in the House and this is a dangerous scenario. Also, the opportunity for the people to petition the SC against such unfavourable Acts has also been prohibited. Currently, this Government is conducting discussions towards amending five Labour Acts and this will no doubt threaten the working class and the trade unions.
“What had changed in the 19th Amendment to the Constitution was only the appointment of the Inspector General of Police (IGP). The removal of the IGP was not touched by it. An IGP can be removed as per the Removal of Officers (Procedure) Act, No. 5 of 2002. If it is really needed, a sitting IGP could be changed after the ratification of a proposal in the House. If it really needs, the Government could appoint a new IGP. But, it is clear that this regime prefers to go ahead with an Acting IGP. They are now getting their job done through him. It is due to this nexus that the politician charged with the demolition of a historical building complex in the Kurunegala District was not arrested. It is also due to this link that instead of nabbing the politician behind the damage caused to the Anavilundawa mangroves in the Puttalam District that the backhoe machine used for its destruction had been taken into custody.
The Government should have looked to rectify the shortcomings in the 19th Amendment to the Constitution rather than repealing it in favour of the 20th Amendment to the Constitution which would pave the way for an autocratic style of governance. If the President was truly determined to bring about transparency to his post then he should have further strengthened it by making his office accountable to the House by strengthening the clauses in the 19th Amendment to the Constitution rather than repealing it and introducing the 20th Amendment to the Constitution. What takes the biscuit in this situation is that the very camp which vehemently opposed the introduction of the unlimited Executive powers through the 1978 Constitution is now condoning it and even exceeding those powers”.
Engrossed in their own troubles
Meanwhile, the United National Party (UNP) is still engrossed with their own crises and its Leader Ranil Wickremesinghe is holding daily discussions with various groups at Sirikotha to resolve the leadership crisis within the Party.
“Will the Working Committee meet now and decide tomorrow on the new leader?, ”several UNP stalwarts asked Wickremesinghe when he visited Sirikotha on Thursday.
“No, the Working Committee will not meet tomorrow. I have to go to the Presidential Commission on Political Victimisation. It was decided to convene the Working Committee meeting somewhere earlier this month but we never decided on an exact date”, Wickremesinghe responded.
Few pointed out that there are speculations that Vajira Abeywardena is seeking a secret ballot when deciding the Party’s new Leader.
“That is nothing new. He is one of the eight contestants of the leadership battle from the beginning. We cannot stop anyone who is campaigning including Vajira and the members of Working Committee. But anything that is being done or said in public could cause harm to the Party,” the UNP Leader further said.
Despite the current background, Karu Jayasuriya not only said that he would run for the leadership, but also convened several special Media briefing at the request of several groups including monks, university lecturers and lawyers.
“Karu is being pushed forward by a Colombo District politician who previously took interest in the leadership, isn’t he? Some are asking why he is being pushed to run for the leadership. Now Ruwan Wijewardene’s name is at the top too? Most people believe that he will be the leader” another member opined.
“Ruwan goes around campaigning like everyone else. Maybe he’s hoping to contest for the leadership. It’s unavoidable,” Wickremesinghe responded.
“But if a youngster like Ruwan becomes the leader, it will be a challenge to the other old politicians. There is some truth in that,” was another opinion.
“Ruwan and Akila are of the same age. They should understand that ones who are older than them are struggling to get the leadership of the Party and they should at least try to reach for a high position in the Party,” that was the stance of the UNP Leader.
“According to the UNP Constitution, can only a Sinhala Buddhist become the leader?” another asked. “No, there is no such thing. A party member – a WC member at that – has a chance to become a leader.” that was Leader Wickremesinghe’s answer.
Some are of the opinion that Jayasuriya is not currently a member of the UNP Working Committee and that he is less likely to run for the leadership. Although Jayasuriya claims that he is an active member of the UNP’s Working Committee, there is a problem with the relevant dates. However, it is clear that there is a huge cold war between Wijewardene, Jayasuriya and Abeywardene for the UNP leadership.
“If a new leader is elected, will you leave the party or not? If so, what is the position you are ready to possess? Many questions will arise. Some say that you will continue as the supreme leader or as the head of the leadership board,” that was another question posed to the UNP leader at Sirikotha. “When a new leader is elected, I will be identified as the former leader, what else?” leader Wickremesinghe said taking everyone by surprise.
“It will not be possible in this world to be superior to the new leader or to be the head of the leadership council.” he said with a smirk in his face.
“The pre-2015 familial dictatorship has already been established. There is an argument that the Government is trying to abolish the 19th Amendment and turn that regime into another dictatorial and undemocratic situation,” a UNP legal officer was concerned.
“Absolutely, in 2015 we tried to abolish the Presidency completely, but it could not be done because the Supreme Court determined that would require a referendum. The Government cannot solve the financial problems and will burn themselves by messing with the 19A,” that was the UNP leader’s opinion.
“The Rajapaksas are not planning to give a post to Maithripala, so they have no fear of losing two-thirds, because the 14 SLFP members are not with Maithripala but with the Rajapaksas. He only has his vote,” he said.
CBSL ignores PM?
Highest echelons of Government are said to be wondering as to what the officials of the Central Bank of Sri Lanka (CBSL) are up to as they have been sitting on a recommendation sent by the Prime Minister for months in appointing a General Manager to the Bank of Ceylon (BOC).
According to sources, Prime Minister Mahinda Rajapaksa in his capacity as the Minister of Finance had sent his recommendation three months ago to appoint D.P.K Gunasekera as the General Manager of the BOC. That was after BOC sent the recommendation on the same matter to the CBSL few months earlier.
Gunasekara was appointed as the Acting General Manager on 2 March 2020. Prior to this appointment, he held positions of Senior Deputy General Manager (International, Treasury and Investment), Assistant General Manager (Overseas Branches) and Assistant General Manager (Corporate Relations), since October 2010.