The proposed 20th Amendment to the Constitution has attracted much criticism and generated plenty of controversy but the government is keen to go ahead with plans to expedite its passage through Parliament despite some strong reservations emerging from within its own ranks.
The objective of the proposed 20th Amendment which has now been gazetted is to reverse most of the changes brought about by the 19th Amendment which was enacted by the previous government. It was also a key election pledge of the ruling Sri Lanka Podujana Peramuna (SLPP).
The 19th Amendment was aimed at shifting the balance of power from the Executive Presidency to Parliament. It pruned the powers of the President and placed some of those powers in a Constitutional Council headed by the Speaker of Parliament. It also diminished presidential immunity.
In contrast, the 20th Amendment seeks to restore the President’s powers. For example, the President will be able to dissolve Parliament after one year instead of four and a half years. The Constitutional Council has been replaced by a Parliamentary Council which does not have overarching powers.
However, the five-year term limits on both the President and the Parliament imposed by the 19th Amendment have been retained in the proposed 20th Amendment. The bar on dual citizens contesting for the Presidency and Parliament imposed by the 19th Amendment has been removed.
The SLPP government and its leaders including President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa have argued that the 19th Amendment led to two power centres within the government which in turn weakened governance and was therefore detrimental to the country.
They cite the constitutional crisis in late 2018 triggered by then President Maithripala Sirisena’s actions to dissolve Parliament and the 2019 Easter bomb attacks as examples of how having two centres of power destabilised the country and resulted in serious and tragic consequences.
Critics of the 20th Amendment argue that it is a regressive step and concentrates too much authority in one individual, the President. They query the need to rush the 20th Amendment through Parliament when the government has already announced plans to enact a totally new Constitution.
They also point out that, in the current climate, there is no need to rush through a 20th Amendment because the government has an overwhelming majority and also because President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa have an excellent working relationship.
Nevertheless, the government is very keen to legislate the 20th Amendment as soon as possible. This is notwithstanding several issues raised by ministers both at the Cabinet and in public comments. Ministers Vasudeva Nanayakkara and Wimal Weerawansa are reported to have made these remarks.
Minister Nanayakkara, the veteran leftist who entered Parliament fifty years ago along with Prime Minister Rajapaksa reportedly raised issue about allowing dual citizens to run for high office. He appeared to imply that the change was aimed at enabling the return of Basil Rajapaksa to Parliament.
Nanayakkara’s argument was that such changes should not be made to accommodate individuals but that discussion only resulted in a wholehearted endorsement of Basil Rajapaksa’s achievement in conceptualising the birth of a new political party, the SLPP, and then guiding it to election victories.
Minister Wimal Weerawansa’s statement was more in the line of how the 20th Amendment should not be a priority of the government. A constitutional amendment will not fill people’s stomachs, the minister is reported to have said, implying that there are more pressing matters to be dealt with.
In the midst of such criticism, Prime Minister Mahinda Rajapaksa appointed a committee to study the proposed 20th Amendment. The committee consisting of parliamentarians was tasked with reviewing the proposed 20th Amendment and reporting back to the Premier with its own observations.
The committee, headed by Minister Prof. G. L. Peiris included ministers Udaya Gammanpila, Ali Sabry, Nimal Siripala de Silva and Wimal Weerawansa, State ministers Susil Premajayantha and S. Viyalendran and parliamentarians Dilan Perera and Premanath C. Dolawatte.
Following the appointment of the committee, Prof. Peiris said the government was open to entertaining criticism regarding the 20th Amendment and that the committee would ‘thoroughly analyse’ the proposed legislation before making its recommendations to Cabinet. The committee, formed over the weekend, handed over its report to Prime Minister Rajapaksa on Tuesday. It was reported that committee members have briefed the Premier on what should be added anew to the proposed 20th Amendment and other amendments that have also been recommended.
Explaining the need for the 20th Amendment, Prof. Peiris said that the amendment was brought to find solutions to pressing issues. “A completely new Constitution is the need of the hour but it is a time-consuming process,” he said and added that electoral reforms are a priority in the new Constitution.
The country’s leading opposition parties, the Samagi Jana Balavegaya (SJB), the Janatha Vimukthi Peramuna (JVP) and the United National Party (UNP) have all vehemently opposed the proposed 20th Amendment, but their ability to stall the amendment in the current political climate is questionable.
That is because the ruling SLPP has a near two-thirds majority in Parliament and will be able to muster the support of smaller parties to secure the required 150 votes to ensure that the 20th Amendment is endorsed by Parliament. This is against a backdrop of a convincing election victory.
The wave of popularity the SLPP government is riding on, the implications of the Covid-19 pandemic, the divisions in the UNP and its tussle with the SJB all mean that the opposition will struggle to unite and launch and sustain a concerted public campaign against the proposed 20th Amendment.
As such, the opposition is banking on challenging the proposed 20th Amendment in courts. This will be on the basis that it impinges on the sovereignty of the people which is enshrined in the Constitution. These challenges can be launched only after the Amendment is presented to Parliament.
Opposition parties will do their best to convince the courts, arguing that some changes affect the sovereignty of the people, particularly the amendment relating to the President’s ability to dissolve Parliament after one year. If the courts uphold this view, such changes will require a referendum.
In this context it is noteworthy that the Attorney General has already submitted his opinion regarding the 20th Amendment, indicating that it can be enacted with a two-thirds majority in Parliament. That, in effect, means the Attorney General is of the view it does not require the approval at a referendum.
The government is working on a timetable of having the 20th Amendment presented in Parliament on September 22. Then, the opposition- and other interested parties- will have a period of two weeks to challenge the legislation in courts. The government expects to enact the Amendment in October.
This will not be the first tussle between the new government and the opposition. They have already been at loggerheads over the swearing in of Ratnapura district parliamentarian Premalal Jayasekara last week. Jayasekara prevailed in this dispute and eventually took his oaths in Parliament.
Earlier, in August this year, Jayasekara and two others who were found guilty of shooting to death a person and critically injuring two persons who were putting up a stage at Kahawatte during the 2015 Presidential Election campaign. They were sentenced to death by the Ratnapura High Court.
Now in prison, Jayasekara requested permission from prison authorities to attend the first session of Parliament. He was denied this. Jayasekara’s request was denied by prison authorities based on a ruling provided by the Attorney General. Jayasekara challenged the ruling in the Court of Appeal.
The Attorney General had ruled that according to Article 91 (1) (a) of the Constitution, no person is qualified to be elected as a Member of Parliament or to sit and vote in Parliament if he is subject to the disqualifications specified in Article 89. Article 89 also specifies the death sentence.
Jayasekara taking oaths
The Court of Appeal, in granting permission to Jayasekara to attend Parliament noted that, as the election of the petitioner itself was not challenged, as an elected representative he has the privilege of taking oaths in Parliament. Jayasekara was elected in the Ratnapura district with over 100, 000 votes.
An interim order was issued by the Court of Appeal stating the permission which was granted will be in effect until the petition filed by Jayasekara is taken up for examination and a verdict is delivered. The matter will be taken up again by the Court of Appeal on September 29.
Based on this premise, the opposition protested the entry of Jayasekara to Parliament and his taking oaths. SJB parliamentarians sporting black shawls, staged a walk out in protest. However, Speaker Mahinda Yapa Abeywardena administered the oath to Jayasekara, despite the protests.
In this tussle, the government maintained that it was only abiding by the decision of the Court of Appeal. President Rajapaksa was to note that the judges delivering the ruling were appointed during the previous government. However, the incident did attract negative publicity internationally.
More such disputes between the government and the opposition are only to be expected in the weeks to come as the ruling SLPP pushes ahead with the proposed 20th Amendment. However, due to their steam-roller majority in Parliament, the final impact of the opposition’s efforts is likely to be minimal.