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The role of the 21st Amendment in political stability 

21 Jun 2022

  • Lawyers and economists note need for checks and balances on the process of governance
BY Sumudu Chamara Even though the 21st Amendment to the Constitution is often viewed as a mere political need, it is one of the most crucial parts of the overall solution to the economic crisis that has crippled the country, because the prevailing political culture played an important role in certain decisions that created the economic crisis. Therefore, ensuring political stability and accountability on the part of the country’s political leaders is one of the priorities at the moment, and a strong 21st Amendment to the Constitution can be used to achieve that.  This was emphasised by a legal expert during an online discussion titled “The 21st Amendment to the Constitution: What are the critical elements to preserve?” conducted by manthri.lk, where what the country should strive to achieve through the 21st Amendment to the Constitution and what the country can expect from the 21st Amendment to the Constitution related proposals put forward by the Samagi Jana Balwegaya (SJB) and the Government were discussed.  The 21st Amendment and the abolition of the Executive Presidency  During the discussion, Attorney-at-Law (AAL) Suren Fernando, an expert in constitutional and public law, noted that what Sri Lanka currently has is not really a Presidential system, even though it is labelled as an Executive Presidential system, but a semi-Presidential system. He stressed that in this context, it is important to understand what to expect from the abolition of the Executive Presidency.  “When we say that we are abolishing that system, it does not mean that we are getting rid of the Presidency altogether, because, even in a Parliamentary system, one needs a Head of State,” he added. Pointing out governing systems that give more powers to the Prime Minister (PM) or a person other than the President, such as a queen or king, he added: “Even in 1972, when we had a Westminster form of Parliamentary system, we did have a President. However, he was the Head of State ceremonially. He was the Head of the Executive, though the Prime Minister was the Head of the Cabinet of Ministers.  “The President was the Commander in Chief of the Armed Forces, which basically says that this is not a country under military rule and that the military is subject to civilian command. So the President will be there. If the SJB’s 21st Amendment to the Constitution Bill goes through, what is meant by the abolition of the Executive Presidency is that we are getting rid of this system which we have labelled as the Executive Presidency. We will still have a President. But that would be someone elected or appointed by the Parliament, and who can be removed through a simple mechanism.” With regard to obstacles in changing the President under the existing laws, he said that it is difficult to hold the President accountable due to several reasons, which Fernando said should be addressed through the 21st Amendment to the Constitution. One of the reasons is that an impeachment against the President is a difficult endeavour, as it requires the support of two thirds of the Members of Parliament (MPs) for the Speaker of the Parliament to present it to the Supreme Court (SC). “If only half of all the MPs signed the motion, the Speaker can refer it to the SC only if he/she thinks that it warrants an inquiry. Then, the SC must find the President culpable of the specified acts charged through that motion, and send it back to the Parliament and the Parliament must again vote on it. It requires a two thirds majority.” He added: “The proposed 21st Amendment to the Constitution will require only a simple majority resolution, because under the proposed 21st Amendment to the Constitution, it is a ceremonial President who is appointed or elected by the Parliament. The President will have certain powers such as those with regard to public security and Provincial Councils (PCs). But, most of his/her powers will be subject to the advice of the Prime Minister.  “When we say the abolition of the Executive Presidency, what is meant by it is that we will no longer have a directly elected President. The President will be elected by the Parliament, and he/she will, by and large, act on the advice of the Prime Minister. Also, he/she will not have most of the powers he/she has today. When he/she appoints a Prime Minister, he/she has to appoint the person who has the confidence of the House. There will be a vote in the Parliament to see whether that person commands the confidence of the Parliament.” Moreover, Fernando said that the proposal presented by the SJB with regard to the 21st Amendment to the Constitution is akin to the 19th Amendment to the Constitution plus (as it has additional or stronger provisions than those included in the 19th Amendment to the Constitution), while the proposal presented by the Government with regard to the same 19th Amendment to the Constitution minus has lesser or weaker provisions than those included in the 19th Amendment to the Constitution. He explained that the SJB proposal has almost everything that the 19th Amendment to the Constitution had, and that it goes beyond that by proposing to abolish the Executive Presidential system. He added that among the appointments to various bodies, appointments to the Right to Information (RTI) Commission and the Colombo Port City Economic Commission will be subject to the Constitutional Council (CC) process.  Adding that the SJB proposal says that there will be two new bodies (under the 21st Amendment to the Constitution it has proposed), Fernando said: “One of them is a National Security Council (NSC). We are familiar with the fact that we do not have a NSC set up by a statute or the Constitution, and what we have is an ad hoc NSC. There have been lots of questions around why that ad hoc body did not function during the time or before the Easter Sunday attacks. In this context, it has been proposed to introduce a NSC constitutionally, so that it is not at the discretion of any one person that it is summoned or not summoned. Further provisions will be set up by law with regard to the minimum number of specified people who ought to be a part of it. The second body is the Council of the State. This body will have representation from the Government, the Parliament including the Parliamentary Opposition, and also 12 other experts appointed in the manner set out in the Constitution. It is envisaged that further provisions will be made through the law. The objective of that body is to ensure a formal mechanism to obtain expert views and to ensure representation of the public. The public might be called to give their views. For example, if there is an issue like the fertiliser issue, the people who are affected by that decision, specialists in agriculture and farmers’ groups, among others, could have perhaps given their representations to this forum. The advice that is given through this forum to the Government is not binding on the Government and it is the Cabinet finally that has to make policy decisions but there will be a mechanism which ensures that the advice of experts, and in appropriate cases, the advice of the public or particular interest groups, is obtained.” He opined that the SJB’s proposal goes beyond the 19th Amendment to the Constitution by abolishing the Executive Presidential system and is thereby basically taking the country to a Parliamentary form of Government. With regard to the Government’s proposal pertaining to the 21st Amendment to the Constitution, Fernando said that although the 19th Amendment to the Constitution framework allowed the then-President to hold ministerial portfolios by a transitional provision, the Government’s proposal (regarding the 21st Amendment to the Constitution) retains the 20th Amendment to the Constitution’s status on that matter. Opining that therefore, if the Government’s proposal goes through, the President can still hold ministerial portfolios, he added that the Government’s proposal does not go back to the 19th Amendment to the Constitution’s position because it allows the President to hold ministerial portfolios.  Economic crisis and the 21st Amendment  In response to a question as to what features of the proposed 21st Amendment to the Constitution would be helpful to overcome the prevailing economic crisis, Fernando said that even though the 21st Amendment to the Constitution is not the only need of the hour, it is certainly a part of the need of the hour. He explained: “If you look at why we are in this economic crisis, it is because we have had a series of decisions for which the political authority was not accountable to the Parliament. The fertiliser issue; tax cuts that came as soon as the President assumed office, perhaps in anticipation of the Parliamentary Election victory; utilising $ 2.2 billion to artificially maintain the exchange rate (between the Sri Lankan rupee and the US dollar); and not seeking assistance of the International Monetary Fund (IMF) or other bilateral or multilateral agencies in a timely manner are among them. This is a series of decisions taken by the Executive for which the Executive was not responsible or was not held accountable by the Parliament under the 20th Amendment to the Constitution framework, and it is what led to the economic crisis that we are in. So, if it is a lack of accountability or lack of responsibility on the part of the Government that led us to this crisis, do we not have to ensure that there is a system in place to hold the Executive accountable to the Parliament? What we are proposing is not an Executive Prime Ministerial system, if I can call it that. The Prime Minister, in this system (under the 21st Amendment to the Constitution), will be held accountable to the Parliament, and the moment he/she does not have the confidence of the Parliament, a no confidence motion can be brought and the Cabinet can be dissolved.” Fernando emphasised that under the 21st Amendment to the Constitution, there will be accountability of the Executive branch of Government, which he said did not exist earlier. He further said: “Particularly in this crisis, we have seen that there is a need for reform. Then, of course, we have international agencies which are actually looking at the possibility of assisting Sri Lanka, saying that they want political stability. Now, political stability does not mean having a Cabinet in place and saying that we now have stability. Stability means a group of people who are acceptable to the people as a whole within a system that has accountability and ensures proper governance. In this context, the 21st Amendment to the Constitution is not the final or the only solution, but it is definitely an important part of the solution.” Meanwhile, speaking at the same discussion, Verité Research Executive Director Dr. Nishan de Mel, opined that one of the most significant constraints Sri Lanka is facing, when it comes to resolving the economic crisis, is the lack of political credibility and stability in the country at present. He said that one of the qualities Sri Lanka must have when it comes to dealing with creditors and the IMF is the ability to demonstrate that Sri Lanka will be able to maintain stability in terms of political support and acceptability, regardless of the agreements Sri Lanka enters into with them.  He added: “When there is the kind of protests and uncertainty that we see in Sri Lanka, we are looking forward to an election, which may change political alignments and views significantly, which, in turn, create a lot of problems for creditors and even for the IMF when it comes to knowing whether they can come to an agreement with the current Government that will stay the course of five years. So, it does not help at all. I think that in terms of negotiating an economic pathway, to say that we are going to have the election soon after we do this (after entering into agreements), it would be more useful and will speed up the process. If we have an election first, we are looking at a path where we are unlikely to get into a restructuring agreement even for a year, simply because there is going to be a lack of clarity for the parties that are negotiating with Sri Lanka. Countries that have political stability and credibility usually do this in four to six months, and it is precisely countries like Lebanon and Zambia that have not had that. They have taken a year and sometimes more to negotiate, and Sri Lanka unfortunately is in that pathway where there is a lack of credibility in the political leadership.” The relationship between political stability and the economic crisis was first highlighted in discussions on what led to the economic crisis. However, as was noted during the discussion and by various experts even before, it is a critical matter when it comes to resolving the crisis too. Their main argument is that even though there are countries and international bodies that are willing to help Sri Lanka to address the economic crisis, they are hesitant to do so until and unless Sri Lanka ensures political stability. Having a proper constitutional framework that ensures accountability and credibility on the part of the political leadership and governance are key concerns, and a proper 21st Amendment to the Constitution could actually be part of the solution.


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