• A comment on the substance and process

By Luwie Ganeshanathan There has been a lot of discussion about amending the Constitution in the last two months, particularly about a ‘21st Amendment’ to the Constitution. It is worth remembering that the reason for this discussion is the public protests across the country blaming President Gotabaya Rajapaksa, his Government, and his policies for the unprecedented economic crisis Sri Lanka is faced with.  President Gotabaya Rajapaksa himself admitted that mistakes were made, yet he refuses to step down and instead has engaged in a process of shuffling around his ministers and changing prime ministers. Considering the President’s refusal to resign and that the Constitution makes it almost impossible to impeach a sitting president, the discourse shifted towards abolishing the Executive Presidency. In April 2022, there were two constitutional amendments which were tabled in Parliament as private members’ bills. These Bills are presently being considered by the Supreme Court. One private member’s bill was submitted by the Samagi Jana Balawegaya (SJB) and another private member’s bill was submitted by a group of Sri Lanka Podujana Peramuna (SLPP) MPs (the Group of 40). The 21st Amendment, drafted by the Ministry of Justice (21A MOJ draft), is the third constitutional amendment that has entered the fray. It is very similar to the private member’s bill presented by the Group of 40. However, both these proposals do not go as far as the SJB Bill, which would convert the presidency into a predominantly ceremonial role with very limited Executive power. This article will only focus on the impact of the proposed 21A MOJ draft on the powers of the Executive Presidency and will not discuss other changes being made. The 21A MOJ draft has not been gazetted yet, as such it has not yet started the legislative process and a lot could change between now and the bill being gazetted. Furthermore, because it is a Government bill, it can proceed much faster through the legislative process than a private member’s bill. As such this article will first focus on some concerns about the process that will most likely be adopted to discuss the 21A MOJ draft before it is gazetted and will thereafter examine the substantive changes made to the powers of the president. The process A constitutional amendment requires the support of 150 Members of Parliament (and sometimes additionally a referendum) in order to become law. As of now, we do not know how much support the 21A MOJ draft has in Parliament. A large part of the SLPP which has the largest number of MPs in Parliament and which has the largest number of ministers in Cabinet seems to be disinterested in constitutional amendments. As such it appears that the 21A MOJ draft will be subject to rigorous political negotiations between the political parties in Parliament. Most likely this will happen behind closed doors and the public will only be privy to the final result (i.e. the gazetted bill). Prime Minister Ranil Wickremesinghe took a similar approach during the passage of the 19th Amendment in August 2019 and the subsequent constitution drafting process between 2016-2018. In both those situations, closed-door discussions between political actors had disastrous consequences. Whilst the 19th Amendment was enacted by Parliament, many of its features which were criticised as unworkable were introduced as part of political compromises during these discussions. The legislative process is inherently a political process and depends on negotiations, but that does not mean it can’t be transparent. In this spirit and considering the popular protests that made it possible to repeal the 20th Amendment, the Prime Minister and the Minister of Justice should officially make the 21A MOJ draft a public document prior to it being gazetted. Furthermore, the Prime Minister and the leaders of other political parties in Parliament should make public their position on the draft, what changes they want made, and the reasons for these positions.  This will allow Sri Lankan citizens to understand which politicians are genuinely interested in political change and which want to go through a sham process doomed to fail, in order to tick a box and everything in between. Considering the widespread distrust in the Government among the public, it is critically important that the Prime Minister does not repeat the same mistakes he made between 2015-2018. Reducing the powers of the president – the substance The 21A MOJ draft would reduce the power of the President in two ways. Firstly, it reduces the powers of the president in appointing persons to key institutions of the government by requiring the president consult the Constitutional Council before making the appointments. The composition of the Constitutional Council is identical to the 19th Amendment and comprises seven members of Parliament and three persons who are not members of Parliament appointed on the agreement of the prime minister and the leader of the opposition.  However, it is important to remember that the 19th Amendment initially proposed that seven persons who were not members of Parliament should be appointed to the Constitutional Council together with three members of Parliament (i.e. the speaker, prime minister, and the leader of the opposition). The drastic change in the composition was made as a result of the negotiations in Parliament to obtain the requisite 150 votes to pass the amendment. There are several criteria proposed as to who can be appointed as persons who are not members of Parliament (which were also part of the 19th Amendment), including that they should be “persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party.” Secondly, the 21A MOJ draft would take away the president’s power to decide the subjects allocated to a ministry, to appoint and remove ministers, deputy ministers, non-cabinet ministers, and secretaries to ministries at his discretion. According to the 21A MOJ draft, the president would have to act on the advice of the prime minister when making such appointments and changes. This is an improvement of the provisions of the 19th Amendment. Furthermore, the power of the president to remove the prime minister at any time, which was introduced by the 20th Amendment, has been removed, bringing it in line with the provisions of the 19th Amendment. Whilst these changes and improvements are noted, it must be said that the 21A MOJ draft does not reduce the powers of the president in the same manner that the 19th Amendment did. In this regard there are several concerning omissions in the MOJ draft. 1) Unlike under the 19th Amendment, under the 21A MOJ draft the president can, at his own discretion, retain ministries and subjects and functions under his control. This is because the 21A MOJ draft does not repeal Article 44(2) of the Constitution which was introduced by the 20th Amendment. As a result, the president will be able to exercise ministerial powers and hold onto such powers at his discretion. 2) Additionally, in terms of the 21A MOJ draft, the president retains the power to dissolve Parliament any time after two-and-a-half years without the approval of Parliament. In terms of the 19th Amendment, the President could only dissolve Parliament (at his will) after four-and-a-half years. The 20th Amendment brought this time period down to 2.5 years and the 21A MOJ draft does nothing to change it. The power to dissolve Parliament is a weapon available to the president to ensure Parliament complies with the president’s will. It gives the president power over Parliament and reduces Parliament’s ability to control the excesses of the president. Additionally, the 21A MOJ draft fails to learn some important lessons from the implementation of the 19th Amendment between August 2015 and September 2020 and fails to make necessary improvements. There are several such areas including;

1. A) There is a need to further reduce the excessive power of the president to make appointments to important positions at his will and have more appointments made through the Constitutional Council process. The 21A MOJ draft has added the governor of the Central Bank to this list of appointments but has left out several others including, the appointed members of the Monetary Board, the commissioners of the Right to Information Commission and the members of the University Grants Commission. This is not an exhaustive list and it is important to carefully consider what other appointments and institutions should be shielded from the direct control of the president.
2. B) The rule-making power of the Constitutional Council is left to the discretion of the Council. But it is important that the Constitution makes it mandatory for the Council to make clear rules (and make them public) as to how it will exercise its powers when considering nominations made by the president and when making recommendations to the president for certain appointments. Especially how the Council will call for nominations, what criteria it will look at, and the process it will undertake in making nominations and recommendations. The Council is supposed to be a check on the arbitrary power of the president, therefore it is important to ensure that there is transparency in how the Council exercises its own powers and functions.
3. C) The 19th Amendment Bill had a provision which allowed political parties to take disciplinary action against members of Parliament who crossover (an improvement on the existing provision in the Constitution). This provision was removed in committee stage. The SJB private member’s bill had a provision to prevent members of Parliament who crossed over from accepting ministerial appointments. These proposals would be useful tools in preventing members of Parliament crossing over for personal gain and privileges.

The economic crisis and how President Gotabaya Rajapaksa and his Government handled it put on display to the entire country the harms of centralising vast powers in the hands of one individual/office. There is an urgent need to make the decision-making processes within Government more accountable and to restore public confidence in governance. Unless that is done, Sri Lanka will not be able to get back on the road to economic recovery. Whilst the 21A MOJ draft provides some improvements from the status quo, it does not go far enough in reducing the powers of the president. (The writer is an Attorney-at-Law and is also a consultant with the Centre for Policy Alternatives [CPA], working on CPA’s public interest litigation.)