• Opposition raises concerns over presidential powers being retained
• Govt.’s 21A draft reinstates Constitutional Council
• Ban on dual citizens holding public office to be retroactive
• President to retain powers to dissolve Parliament in 2½ years
• TNA stands firm against president holding ministries

By Skandha Gunasekara  The ‘Aragalaya’ series of public protests seeking change and reforms has now passed 50 days of continuous dissent at Galle Face and other protest sites, as policymakers move slowly, trying to find consensus on the 21st Amendment to the Constitution proposed by the Government.   The Government’s proposed 21st Amendment was presented to the Cabinet of Ministers last week (23), with several salient features of the 19th Amendment brought in by the then Yahapalanaya Government. However, straight out of the gate, the Bill proposed by the Government has drawn criticism from the Opposition and the SLPP, as well as the Bar Association of Sri Lanka (BASL).  Opposition Leader Sajith Premadasa on Thursday (26) pointed out that contrary to the assurances given by the President earlier that he was ready to relinquish his powers, the draft Bill prepared by the Justice Minister enables the President to hold ministerial portfolios.  The SLPP, the party of the President, has objected to some of the proposed changes including ones relating to dual citizens – a key demand of the protestors. 21A will include positive features of 19A Ronald Perera, PC who was part of the Committee that drafted the Bill, explained that many positive features of the 19th Amendment had been reintroduced, such as the Constitutional Council. “The Constitutional Council has been reinstated through the 21st Amendment. It sets out the composition of the Council as well as the persons whose appointments would go before the Council, like the Election Commission, Public Service Commission, and National Police Commission, etc.” The Council will also approve the appointments of certain officers like that of the chief justice and judges of the Supreme Court, president and judges of the Court of Appeal, members of the Judicial Service Commission, the attorney general, auditor general, inspector general of Police, secretary general of Parliament, and the governor of the Central Bank (CBSL). “It must be noted that the appointment of the governor of the Central Bank was not part of the 19th Amendment and was added here,” he said. He noted that dual citizenship holders would be disqualified from becoming parliamentarians and this clause would have a retroactive effect. “If you are a citizen of Sri Lanka and also a citizen of another country, you are not qualified to be a Member of Parliament. Any member of the ninth Parliament – the present Parliament – who is subjected to this same qualification will not be qualified to sit in Parliament from the date this Amendment comes into operation.” Perera said that the 21st Amendment had retained the 20th Amendment’s feature of empowering the president to dissolve Parliament after two-and-a-half years unlike in the 19th Amendment where dissolution of Parliament by the president could only be done after four-and-a-half years. Perera elaborated that the rationale behind allowing the president to hold any number of ministries and make ministerial appointments had been to avoid a situation in which there would be no administrative structure in the event a prime minister were to step down. “On the point of the president being able to hold any number of ministries – it is a matter for debate. This was kept for certain reasons. For example, if the prime minister resigns, like we saw happen this month, then the entire cabinet goes out of office. This time the entire administration structure landed on President Gotabaya Rajapaksa, who became the minister of all the ministries in the country. So it is sort of a failsafe in case of the resignation of a prime minister, but these clauses can be considered by the party leaders before the Bill goes to the President.” SLPP stance Ironically, the President’s own party, the Sri Lanka Podujana Peramuna (SLPP), has criticised Prime Minister Ranil Wickremesinghe about the Government’s 21st Amendment Bill. SLPP General Secretary Sagara Kariyawasam speaking to The Morning earlier last week said that an amendment should not be drafted targeting one individual – referring to the 21st Amendment’s clause on dual citizenship disqualifying an individual from entering Parliament. “As a country’s constitution is its main document, it cannot be written with one person in mind. No country in the world makes constitutions to stop someone from coming to Parliament or to chase them away, or to prevent someone from becoming president. Constitutions are designed to meet the needs of the country. People are still on the roads in queues. And he [Wijeyadasa Rajapakshe] is trying to bring a constitutional amendment. First, solve the economic crisis and create an environment which allows a parliamentarian to walk freely on the road and have the mental freedom to think. Then we can discuss a constitutional amendment,” he said. TNA stance Tamil National Alliance (TNA) M.A. Sumanthiran asserted that the clause allowing a president to hold portfolios and appoint ministers should be removed from the 21st Amendment. “The plan was to abolish the Executive Presidency eventually, and in that direction for the 19th Amendment to be restored. But what has come to us is much less than what was in the 19th Amendment. For instance, the Executive Presidency – whether the president can hold ministries. According to the 19th Amendment, the president couldn’t hold any ministries and make appointments to ministries. This crucial part of the 19th Amendment has been changed. So it cannot in any way be said to be restoring the 19th Amendment in so far as the Executive Presidency is concerned,” he said. Sumanthiran added that the argument on the clause stating the president must make appointments to ministries on the advice of the prime minister was irrelevant as the president could ultimately disregard such advice and make the final decision on the appointment. BASL recommendations The Bar Association of Sri Lanka (BASL) has written to Minister of Justice Dr. Wijeyadasa Rajapakshe with recommendations to be added to the 21st Amendment. “The BASL is of the view that the 21st Amendment must include a provision amending Article 44(2) of the Constitution, removing the power of the president to retain ministries and assigning to himself any subjects or functions. Such provision must be made operative as soon as the 21st Amendment is passed. “In addition, the BASL observes that the president's powers to prorogue and dissolve Parliament are left intact, in contrast to the 19th Amendment to the Constitution where the president could dissolve Parliament only after four-and-a-half years following a Parliamentary Election. The BASL is of the view that the provisions in the 19th Amendment relating to dissolution of Parliament should be restored,” the statement provided.  Among BASL recommendations are including a provision for members of the Monetary Board to be appointed with the approval of the Constitutional Council (in addition to the governor of the Central Bank); a provision for the appointments of the secretaries to the ministries, governors of the provinces, ambassadors, and heads of missions be done on the advice of the prime minister in consultation with the cabinet of ministers; a provision to require presidential pardons to be done according to the recommendation by a body established by law appointed by the president on the recommendation of the Constitutional Council; and a provision to enhance financial independence, transparency, and accountability of the independent commissions.  The BASL further recommends that the number of members of the Constitutional Council who were not Members of Parliament be increased from three to five and conversely, the number of Members of Parliament on the Constitutional Council be reduced from seven to five as was found in the 17th Amendment to the Constitution. This is consistent with the position taken by the BASL in 2015 when the 19th Amendment was enacted. CCC recommendations Meanwhile, the Ceylon Chamber of Commerce (CCC) too has written to the Minister of Justice with suggestions to further improve the 21st Amendment, including to reactivate provisions of the 19th Amendment which were repealed by the 20th Amendment. The statement provides: “Increase the number of independent members chosen to represent civil society on the Constitutional Council to five (5) increasing it from the proposed three (3) members to achieve a better balance. Further, we recommend that wording on the lines of Article 41B(3) is adopted to ensure that the composition reflects the pluralistic character of the society, including gender.  “It should be an obligation of the Constitutional Council to formulate a set of rules to govern their internal workings as this would lend to a due process being followed and transparency achieved. It is also suggested that where ‘subject to the approval of the Constitutional Council’ appears it should be amended to read as ‘subject to the prior approval of the Constitutional Council’ in order to avoid any doubt. “Article 44(2) of the constitution that allows the president to assign any subject or portfolio to himself should also be removed to ensure that the stability and certainty we all desire is entrenched. All secretaries to ministries should also be appointed only on the advice of the prime minister to minimise conflicts and avoid uncertainty. The ambit of the powers of the Constitutional Council should include the Monetary Board and the Right to Information Commission. “Article 156C(1) should be strengthened to state that the core function of the National Procurement Commission envisages legally binding guidelines on procurement to be published in a timely fashion.” Justice Minister’s challenge Meanwhile, Justice Minister Dr. Wijeyadasa Rajapakshe on Friday (27) took to social media and challenged anyone to show any provisions in the 21st Amendment that enhanced President Gotabaya Rajapaksa’s Executive powers.  “If anyone can show a single word in the proposed 21st Amendment Bill to enhance the existing powers of the President, I will withdraw it,” Minister Rajapakshe said on his Facebook page. SJB stance Main Opposition Samagi Jana Balawegaya (SJB) MP Dr. Harsha de Silva pointed out that while going back to the 19th Amendment was beneficial, it would not be adequate in terms of the demands of the people and the needs of the country.   “The 21st Amendment that the Government is proposing to bring in is the 19th Amendment that it said was so horrible and became its reason for bringing in the 20th Amendment. So going back to the 19th is obviously very good. We have no issue with it, but that is not enough.” He, too, charged that a president should not be allowed to hold any portfolios but opined that he was in favour of the clause to allow the president to dissolve Parliament. “But there are some issues with this new version of the 19th Amendment – one is that the president can hold various portfolios and the dissolution of Parliament can be done in two-and-a-half years as opposed to four-and-a-half years. My personal view is that the President should not hold any portfolios. But on this two-and-a-half dissolution of Parliament compared with four-and-a-half years, I actually don’t mind letting the President dissolve Parliament at the end of two-and-a-half years because of the situation that currently exists. I think the best solution for it is through an election. At least in this transition provision, I don’t mind keeping it at two-and-a-half years.” He asserted that he believed the Opposition should support the 21st Amendment Bill in Parliament but that such a decision would need to be taken with the concurrence of all Opposition parties. “I don’t see any reason why the Opposition shouldn’t support it because it brings back most of what the 19th Amendment had. But we need to discuss with the other Opposition groups before we make a decision. This is not going to resolve the problem, but I agree it is a step in the right direction.”