Executive presidency: GR’s litmus test

The much anticipated 20th Amendment to the Constitution proposed by the Government, headed by President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa, was gazetted last week after receiving approval from the Cabinet of Ministers last Wednesday (2).

Earlier in the week, Sri Lanka Podujana Peramuna (SLPP) Chairman and Minister of Education Prof. G.L. Peiris said the proposed 20th Amendment would not require the holding of a referendum since clauses that would require such an endeavour have not been included in the new piece of legislation.

He noted that a two-thirds majority could approve the 20th Amendment and it would be sufficient.

Prof. Peiris’ opinion was further validated by the Attorney General (AG) a few days later.

The AG also noted that the proposed 20th Amendment to the Constitution would not require a referendum and that two-thirds support in Parliament would help its passage.

It is interesting to note that the 20th Amendment, if taken up and passed in Parliament by mid this month, would be the first piece of legislation to be implemented within a period of a month since the inauguration of a parliament post polls.

Everything seems to be moving at a fast pace – a case of getting down to real business. The Cabinet of Ministers agreed to introduce a constitutional amendment at its first meeting after the new Government assumed office and the draft 20th Amendment was presented last week and approved by the Cabinet. Of course, it was gazetted the following morning.

The draft 20th Amendment has however retained a few clauses from the 19th Amendment – the limiting of the presidential term to five years and limiting the frequency an individual could contest for the presidency to two times.

Following are some of the salient features of the proposed 20th Amendment to the Constitution:

  • President can dissolve Parliament in a year
  • President can remove Prime Minister
  • Full legal immunity to the President restored
  • The Constitutional Council that appointed members to independent commissions would be replaced with a parliamentary council. The Parliamentary Council will only be allowed to exercise observational powers and would be void of the President’s representatives and three civil representatives who were in the Constitutional Council
  • The Parliamentary Council will comprise the Prime Minister, Speaker, Leader of the Opposition, a nominee of the Prime Minister, and a nominee of the Leader of the Opposition
  • The President will be vested with powers to appoint chairmen and members of the commissions – Election Commission, Public Service Commission, National Police Commission, Human Rights Commission of Sri Lanka, the Commission to Investigate Allegations of Bribery and Corruption, Finance Commission, and Delimitation Commission
  • The President will seek observations of the Council and they are required to be conveyed through the Speaker within a week from the date of seeking such observations and if the Council fails to do so, the President could proceed to make the appointments
  • The law barring dual citizens from entering Parliament was revoked
  • Minimum age limit for a president has been reduced to 30 from 35 years
  • The President could be a member of the Cabinet of Ministers while being the Head of the Cabinet
  • The limit on the number of cabinet ministries that was fixed at 30 has been removed
  • The limit on the number of state and deputy ministries that was fixed at 40 has been removed
  • The National Procurement Commission and National Audit Commission have been scrapped
  • The President will appoint the Auditor General
  • The appointment of the Chief Justice, justices of the Supreme Court, chairman and justices of the Court of Appeal, as well as members of the Judicial Services Commission (JSC) can be made by the President
  • The President can appoint the AG, the Parliamentary Commissioner for Administration (Ombudsman), and the Secretary General of Parliament
  • The President will be allowed to appoint the Police Commission and the Police Commission will appoint the Inspector General of Police (IGP)

Be that as it may, it is evident that the executive presidency of the initial 1978 Constitution is now back in full force.

New Constitution

Apart from the 20th Amendment, one of the key tasks of the Government headed by President Rajapaksa is the introduction of a new Constitution.

In order to expedite this endeavour, the Cabinet of Ministers last week agreed to the appointment of an Expert Committee headed by Romesh de Silva PC.

The committee is tasked with preparing the preliminary drafts for a new Constitution.

Co-Cabinet Spokesperson and Minister of Energy Udaya Gammanpila said the committee comprises Romesh de Silva PC (Chairman), Gamini Marapana PC, Manohara de Silva PC, Sanjeewa Jayawardena PC, Prof. Naazima Kamardeen, Dr. A. Sarveswaran, Samantha Ratwatte PC, Prof. Wasantha Senevirathne, and Prof. G.L. Peiris.

Gammanpila last week told the media that although the Government expects to introduce the 20th Amendment to the Constitution on a priority basis repealing the 19th Amendment, it will take another two months, and the new Constitution will come after a minimum of two years.

He told the weekly cabinet news briefing that Justice Minister Ali Sabry PC could table the amendment only after two weeks from the date of publication of the gazette.

According to Gammanpila, the 20th Amendment will be subjected to a public discussion for two weeks, and the Government was ready to incorporate proposals from the public depending on their relevance.

Indian stance

Along with the discussion of introducing a new Constitution, the fate of a few other key constitutional amendments has also become subject to public discussion.

Key among them is the 13th Amendment and the provincial councils system.

During the past few weeks, certain sections of the Government have expressed the view that the provincial councils system that was set up in accordance with the Indo-Sri Lanka Accord should be done away with.

This debate has created doubts on whether the impending provincial council (PC) elections will be held any time soon.

The issue has obviously caused quite a debate with the SLPP Government as well.

The SLPP Provincial Councillors’ Federation on Thursday (3) addressed the media after holding a discussion about the impending PC polls.

Former Provincial Councillor Kanchana Jayaratne, who is vying for the chief ministerial post in the Sabaragamuwa Province, said the federation had adopted a motion at its meeting to urge the holding of the PC polls under the old electoral system.

He noted that there is a discussion being built on the fact that there was no necessity to hold PC polls.

“If there’s going to be a discussion on the provincial council system, then it should be done in line with the Constitution,” Jayaratne said.

He further referred to the observations made by State Minister for Provincial Councils Sarath Weerasekera on the provincial councils system. “However, the Government has not made any official statement about the provincial councils. Hence, it could be the State Minister’s personal opinion. We, as the Provincial Councillors’ Federation, reached a unanimous decision to condemn the statements made by Weerasekera about the provincial councils,” Jayaratne said.

In response, Weerasekera maintains that he has always stood against the 13th Amendment as well as the provincial councils system.

“The 13th Amendment was forcibly thrust on us by India. We are opposed to the dividing of the country and making it a federal state. The 13th Amendment was a result of the Indo-(Sri) Lanka Accord and according to it, there were some clauses India also had to fulfil,” the State Minister told the media last week.

He added that India should not expect Sri Lanka to fulfil its obligations after having failed to do their part.

It is in this backdrop that the Government is looking at appointing a former Minister, Milinda Moragoda, as Sri Lanka’s High Commissioner of Cabinet rank to India.

If the appointment is made, it will be the first time an envoy of Cabinet rank will be appointed by the Government and the envoy will be able to interact with the leaders of both the countries directly without going through the respective foreign ministries.

Moragoda first served as an MP in 2001 in the United National Party (UNP) Government and afterwards served as a Minister in the former Mahinda Rajapaksa Government.

Meanwhile, Foreign Secretary Prof. Jayanath Colombage had told the media that Moragoda would be appointed High Commissioner of Cabinet rank because he was a person of international stature.

As soon as the Government’s intentions were divulged in the media, it gave further rise to speculation that the 13th Amendment was definitely facing the axe and required a high-level dialogue between the Governments of India and Sri Lanka. The person to pave such a platform would be Moragoda.

Nevertheless, given the recent statements made by the Indian High Commission in Sri Lanka, the Indian Government has not yet changed its stance on the 13th Amendment and still pushes for its full implementation.

National organisations stand firm

The discussion on the proposed constitutional amendments and the inclusion of certain clauses has also irked the nationalist forces within the SLPP.

The nationalist movement last week openly expressed its frustrations at the proposed constitutional amendment as well as the actions of Viyathmaga, which is one of the main civil society organisations to back President Rajapaksa and his agenda for the country.

Federation of National Organisations Convener Dr. Wasantha Bandara on Thursday (3) organised a press briefing with other representatives of the federation and called on the Government not to repeal the clause that prevented dual citizens from representing Parliament or any other public office.

Dr. Bandara explained that there are officials who do more damage to the country than the parliamentarians.

According to him, those holding dual citizenship should not be allowed to hold offices like ministry secretary, justice of the Supreme Court, Attorney General, Auditor General, and Governor of the Central Bank of Sri Lanka (CBSL).

“Therefore, the law on dual citizens that was in the 19th Amendment should be included in the 20th Amendment. The law should also be extended to the official posts mentioned by us,” Dr. Bandara said, adding: “This has not been included in the proposed amendment. Please don’t wait to make the changes in the committee stage of Parliament. It will then be used by separatists to push their amendments as well.”

According to the explanation given by Dr. Bandara, there was an issue of accountability when appointing persons holding dual citizenships to higher offices.

He said that such individuals are able to return to another country after doing anything detrimental to Sri Lanka.

He added that a US citizen, when swearing allegiance to the US, pledges to even take arms against any other nation that is deemed an enemy of the US.

Speaking further, Dr. Bandara pointed out that observations from the Cabinet were not sought upon the draft of the piece of legislation being presented to the Cabinet.

“We call for the amendment of the draft of the proposed amendment. There should be space for the Cabinet Ministers and the general public to make observations and give their proposals for the proposed amendment as well. It should be gazetted only after that,” he said.

The federation noted that there was no clue as to what exactly the Cabinet of Ministers expressed when handed the draft 20th Amendment.

Referring to the recent statement by the President that pressure should not be exerted to make changes to the appointments that have been made to the state bodies, Dr. Bandara said the comment cannot be accepted.

He noted that the Federation of National Organisations had played an immense role in ensuring the President obtained the mandate he sought from the public at the polls and that some of the officials who are currently advising the President were not in touch with reality.

“Some of the officials like those in Viyathmaga did not work among the public. They were mostly engaged in holding meetings at hotels and did not mix with the general public. We were the ones who visited villages and temples and distributed 1.5 million leaflets in villages and temples. We even did a leaflet in Tamil. None of these advisory bodies did anything like that. The Pohottuwa leaders said they can bring only five million votes at the polls. The remaining 1.9 million votes were secured by the national movement. These nationalists are now questioning us. We get endless telephone calls and even if we go to a funeral house, they ask questions. Therefore, we would like to tell the President that we are unable to accept it and keep silent over every appointment made by him as being the correct one. Because we represent the people,” Dr. Bandara told the media.

Also addressing the news conference, Dr. Gunadasa Amarasekera said that rather than focusing on a constitutional amendment, it was prudent to look at introducing a new Constitution as pledged in the President’s policy statement, “Vistas of Prosperity and Splendour”.

US whacks China

While Sri Lanka’s political sphere was abuzz with the proposed 20th Amendment and the future of the 13th Amendment in a new Constitution, the US imposed sanctions on 24 Chinese companies, making it illegal for US companies to export products to these entities without a government license.

This decision affects the China Communications Construction Company (CCCC), which is the parent company of the China Harbour Engineering Company (CHEC) engaged in constructing the Colombo Port City.

CCCC was previously involved in the construction of the Hambantota Port and the Mattala Rajapaksa International Airport.

This is the first time the US has sanctioned Chinese companies involved in building artificial islands in the South China Sea.

China has constructed artificial islands in the South China Sea including the Fiery Cross Reef, Subi Reef, and the Port City in the seas of Sri Lanka.

The South China Morning Post reported that the US’ blacklisting of the Chinese contractor at the centre of Beijing’s island-building activity in the disputed South China Sea could have a disruptive ripple effect across Asia, diplomatic observers have said, pointing to the firm’s extensive presence from Sri Lanka to the Philippines.

The censure’s impact might also be felt by US firms that would be required to obtain licences before they exported products to support Asian projects linked to the CCCC, analysts have said.

Malaysia’s $ 10.5 billion East Coast Rail Link, the $ 1.4 billion Port City in Colombo, Sri Lanka, and a new $ 10 billion airport outside the Philippine capital of Manila are among the CCCC’s marquee overseas projects.

Given the scale of the Chinese firm’s regional presence, observers who had spoken to This Week in Asia have predicted multiple governments as well as local corporate entities that had partnered with the CCCC and its subsidiaries would be scrambling in the coming days to figure out just how the sanctions worked.

The CCCC is embedded in Asian economies partly because of their participation in the Belt and Road Initiative (BRI), Beijing’s multibillion-dollar infrastructure programme.

Five CCCC subsidiaries are among 24 Chinese companies that the US Commerce Department has recently added to its so-called entity list, which bans the companies from receiving US imports without a license.

US Secretary of State Mike Pompeo has said China should not be allowed to use the CCCC and other state-backed entities to “impose an expansionist agenda”, while a senior administration official was quoted in The Wall Street Journal as saying the censure was aimed at labelling the CCCC as the “Huawei of infrastructure”.

US touches base with SL

A few days after imposing the sanctions on Chinese companies including the CCCC and five of its subsidiaries, US Secretary of Defence Dr. Mark T. Esper telephoned President Rajapaksa and discussed their shared commitment to a free and open Indo-Pacific that ensures the sovereignty of all nations.

Esper urged continued progress on reconciliation and human rights in Sri Lanka, while also congratulating the President on his successful handling of the Covid-19 pandemic and the recently concluded parliamentary election, the US Department of Defence said.

“Reviewing common bilateral defence priorities, they noted opportunities to enhance military professionalisation, counterterrorism, and maritime security co-operation. Both leaders expressed their commitment to expanding bilateral defence relations and to advancing shared interests,” the US Department of Defence mentioned in a read-out of the conversation.

Reading between the lines, one could assume the diplomatic discussion that could have taken place between Esper and Rajapaksa.

Meanwhile, the US Embassy in Colombo on Friday (4) issued a statement which noted that on 26 August, the US Department of State imposed visa restrictions on People’s Republic of China (PRC) individuals responsible for, or complicit in, either the large-scale reclamation, construction, or militarisation of disputed outposts in the South China Sea, or the PRC’s use of coercion against Southeast Asian claimants to inhibit their access to offshore resources.

“These individuals will now be inadmissible into the US, and their immediate family members may be subject to these visa restrictions as well. In addition, the Department of Commerce has added 24 PRC state-owned enterprises to the Entity List, including several subsidiaries of China Communications Construction Company (CCCC). Under these sanctions, certain US-origin items may require a license subject to Export Administration Regulations (EAR) before they can be provided to companies on the Entity List,” the statement noted.

The US mission further elaborated that since 2013, the PRC has used its state-owned enterprises to dredge and unlawfully reclaim more than 3,000 acres in the South China Sea, destabilising the region, trampling on the sovereign rights of its neighbours, and causing untold environmental devastation.

“The CCCC led the destructive dredging of the PRC’s South China Sea outposts and is also one of the leading contractors used by Beijing in its global Belt and Road Initiative (BRI) strategy. The CCCC and its subsidiaries have engaged in corruption, predatory financing, environmental destruction, and other abuses across the world.

“These sanctions are targeted at PRC entities and the US further encourages countries to manage risk when dealing with the CCCC and its subsidiaries. The CCCC has done untold environmental damage, been involved with malign actions around the world, and caused instability in the Indo-Pacific,” the US Embassy stated.

The US mission had also said it hoped countries will examine their dealings with the CCCC to guard against the company’s abuses, and to protect their own sovereignty and interests.

SJB alliance

While the Government was engaged in carrying out its agenda amidst pitfalls, the Opposition parties are still trying to recalibrate.

Election Commission (EC) Chairman Mahinda Deshapriya last week clarified one of the key questions that existed over the position of the newly elected members of parliament (MPs) under the Sajith Premadasa-led Samagi Jana Balawegaya (SJB). Following the election of a group of UNP members to Parliament under the SJB, there were many questions over their legitimacy and whether they still represented their former party the UNP.

Deshapriya, however, noted that the MPs representing the SJB were no longer identified as UNP members.

Deshapriya told The Sunday Morning that there were no UNP MPs in Parliament at present and all those who contested under the SJB were now identified as SJB members even though they held the membership of the UNP earlier.

The alliance was formed to contest the 2020 Sri Lankan parliamentary election. On 11 February 2020, the EC announced that they had accepted the party as a recognised political party in Sri Lanka.

MP Ranjith Madduma Bandara was named the General Secretary of the party.

The Jathika Hela Urumaya (JHU), the Sri Lanka Muslim Congress (SLMC), and the Tamil Progressive Alliance (TPA) joined the new alliance on 12 February 2020. The alliance won 54 seats and became the main Opposition in just six months after its formation. Now, the SJB-led alliance named Samagi Sandanaya is to be formed shortly.

Some positions of the Samagi Sandanaya are to be assigned to the JHU, SLMC, All Ceylon Makkal Congress (ACMC), and the TPA. The allies who supported the SJB at the polls have continuously been calling for the formation of an official political alliance claiming the SJB could not be considered a political party.

Discussions are currently underway with the allies on the proposed new alliance.

SJB National Organiser Tissa Attanayake noted that if an alliance is not formed, it would cause a lot of disadvantages to the other friendly parties that supported the SJB in gaining seats during the general election.

“We need to retain their support for upcoming elections, and we will continue as the SJB but will also form an alliance so we can afford fair treatment to all the parties that align with us. It will also strengthen the Opposition in keeping the governing party in check in the next five years,” Attanayake elaborated.

“The Samagi Sandanaya needs to be created so the UNP can align with us under the leadership of Sajith Premadasa.”

Inviting UNP

Meanwhile, the UNP last week faced another setback with district returning officers being instructed to refrain from taking action against a group of UNP local government (LG) members until 10 September.

The Court of Appeal last week issued the order preventing action against 38 UNP LG members.

The 38 UNP members were suspended from the party for extending support to the SJB at the 2020 general election.

The Court of Appeal issued the order after taking up for consideration the petition filed by the group against the suspension of their UNP membership.

The SJB has meanwhile called on the UNP to merge with it and form an electoral alliance.

There is no one in the SJB against a merger with the UNP but there are some in the latter which should be left out, SJB MP Hector Appuhamy has told a press conference.

“We would like to merge with the UNP, but we don’t want to associate with a few in the Grand Old Party. I don’t think there is anyone in the SJB who would oppose a merger with the UNP,” Appuhamy had said.

“SJBers, including me, are descendants of UNPers. However, we had to form the SJB and go separately as the UNP leadership did not do what it had to do prior to the general election. The UNP should have been handed over to Leader of the Opposition, Sajith Premadasa. The SLPP would not have obtained a two-thirds majority if such a thing happened. One will have to wait and see the dire consequences of it later,” Appuhamy had added.

However, despite rumours of discussions taking place between the UNP and the SJB, there still hasn’t been any official discussion between the two parties, UNP senior advisor Lasantha Goonewardena had said.

“Although the SJB is making statements about potential meetings scheduled with our senior members, none of those meetings have taken place yet.

“A group will meet our present Leader to discuss the way forward. However, we are far from finalising the correct candidate to be appointed as party leader, given the current situation,” Goonewardena had noted.

Youth for Ruwan

The UNP’s leadership issue that was to be resolved on Friday had to be postponed till this week since Ranil Wickremesinghe was summoned before several presidential commissions of inquiry last week. The UNP Working Committee is scheduled to be held this week and UNP Deputy General Secretary Ruwan Wijewardene seems to be the frontrunner in the race for the UNP leadership.

Wijewardene last week said he was ready to take over the party leadership.

He made this remark during a public meeting in Anuradhapura last Saturday (29 August).

He said that there are several party members who have already staked a claim for party leadership.

“I kept silent, but during the past few days, there have been so many party members from across the country asking me to take over the party leadership,” he said.

Wijewardene went on to say that he is prepared to take over the party leadership.

Meanwhile, the UNP National Youth Front (Jathika Yovun Peramuna) has passed a resolution calling for Wijewardene’s appointment as the new party leader.

National Youth Front Secretary Darshana Chathuranga Brahmana had told a news conference that 32 of the 42 executive members of the youth front had voted in favour of the resolution calling for Wijewardene’s appointment as the new leader.

“We initially passed a resolution on 13 August 2020 stating that six names including Wijewardene, Arjuna Ranatunga, Akila Viraj Kariyawasam, Palitha Range Bandara, Karu Jayasuriya, and Navin Dissanayake should be considered when deciding on the top post. However, we passed another resolution on Wednesday calling for the appointment of Wijewardene as the new leader,” he had said.

The National Youth Front had also said it would welcome a UNP and SJB merger.