The abiding feature of the indigenous constitution-making in Sri Lanka is personalism. Since the first Republican Constitution of1972, successive constitutions and endless amendments have been adopted to remodel the supreme law of the country to fit into the personal and political ambitions of the political leadership of the time.
The United Front Government which was elected with a two-third majority in 1970 converted the House of Representatives to a Constituent Assembly and churned out the first indigenous constitution that replaced the Soulbury Constitution. The whole exercise was justified in the name of autochthony (read as homegrown) and the Supremacy of Parliament, yet the underline intention was to restructure the state to suit the personal ambitions of then Premier Sirimavo Bandaranaike and ideological ambitions of her socialist bedfellows. In retrospect, it was a disaster. Seven years of economic ruin (the average annual economic growth during the period was 2.5%) and democratic vacuum of the United Front Government was exploited by the craftier opponent, JR Jayawardene in 1977. Elected with a 5/6th majority, JR, the Prime Minister elevated himself to the post of the Executive President through the Second Amendment to the 1972 Constitution. The subsequent 1978 Constitution set the country on a slippery path to political absolutism under an all-powerful presidency. Rather than any particular constitutional tradition, the constitution making exercise of JR smacked of the workings of the developmental dictatorships and quasi authoritarian states in South East and East Asia. Fittingly, the executive presidency and preponderance of power at its disposal were justified on the grounds of political stability and sense of urgency for development. Unfortunately, his presidency produced the polar opposite - two insurgencies that dissipated the economic opening of early economic liberalisation.
Two decades later, in 2010, the then-President, Mahinda Rajapaksa took it further, incorporating the 18th Amendment, which removed the term limits of the presidency, effectively paving way for a president for life. The 19th Amendment was meant to undo MR’s tampering with the constitution. It empowered the independent institutions, strengthened the separation of power and restored the term limits of the presidency. However, its drafters also inserted petty personal machinations into the amendment, such as the restriction placed on dual citizens running for the elected office (which was aimed at the Rajapaksa siblings!) and special powers and privileges extended only for the term in office of the then incumbent president to make it more palatable to him.
The proposed 20th Amendment is yet another bout of personalism under a new president and a Parliament that is beholden to him. It converges powers of the state in the office of the president at the expense of Parliament. It allows the president to dissolve Parliament one year after the election. The 19A precluded the President from doing so until four and-a-half years after the election of Parliament. The President can liberally appoint and remove Cabinet and other ministers at his will - ‘in consultation with the Prime Minister, where he considers such consultation to be necessary,’ and he may assign himself any Cabinet portfolio. The 19A required that he appoint Cabinet and other Ministers on “the advice of the Prime Minister.”
The full scope of the presidential immunity will also be restored, and no fundamental rights petition can not be filed against the President, under the draft 20A.
The Constitutional Council which is entrusted with nominating chairpersons and commissioners of the independent commissions will be replaced with a Parliamentary Council of five members. Unlike its predecessor, the Parliamentary Council provides only ‘observations’ to the President on making appointments to the independent commissions. Whereas the 19A precluded the President from making appointments to the independent commissions without the nominations from the Constitutional Council (CC).
Two commissions established by 19A - Audit Service Commission and National Procurement Commission - are also abolished. 20A has retained two salient provisions of the 19A: the mandatory two-term limits of the presidency and its five-year term remain intact, so is the Right To Information of the citizens.
Barring a brainwashed sycophant, a discerning individual would notice the regressive character of the 20th Amendment. Add insult to injury, it is meant to replace one of the rare progressive provisions of the constitution. The funny thing though is that, much of the practical implications of 20A is largely redundant in the current status quo of Sri Lankan politics.
In practice, the separation of powers between the executive and the legislature exists in Sri Lanka only when there is a rare occasion where the majority of Parliament and the office of Presidency are held by two rival political parties. When not, Parliament has willfully subordinated itself to the will of the President. The two exceptions were the short-lived cohabitation between the UNP and then President Chandrika Kumaratunga in 2002-2004, and the UNP and Maithripala Sirisena presidency during 2015-2019. Both instances turned out to acrimonious and created deep political paralysis.
Whereas the current government of SLPP enjoys a two-thirds majority. The most sycophantic quarters of the House are rooting to vote for a Bill that would empower the presidency at its expense. Though they are signs of disgruntlement in isolated quarters of the ruling party and its allies, all that is a storm in the tea cup and would be handled with the carrot and the stick - and nominal amendments inserted into the draft.
The 20th amendment is redundant because with the two-third majority in the House and a pliant Parliament, the President and the government could accomplish much of their intentions with or without it, perhaps with the exception of bringing Basil Rajapaksa to Parliament through the national list.
In all practical consideration, it is unlikely that the Rajapaksa siblings at the helm would end up at each other’s throat. The strict subordination of Parliament to the office of the presidency is relevant only to avoid that possibility. However, the despondency of the legislature enshrined through the 20A would create problems for the future. The future legislatures are most likely to fight out their differences with the presidency in the streets. This amendment, in the long run, would be a recipe for coloured revolutions, and not for stability.
Another hallmark of the quest for the absolute power is the Parliamentary Council, which does not have teeth, and effectively is redundant. The President can appoint commissioners to the independent commissions at his whims and fancies. When such powers are granted, allowances should be made for abuse.
However, also in a fair take of the 19A, its provisions on the CC is unworkable. It relies on the camaraderie between the Prime Minister and the Opposition Leader. The duo are entrusted with nominating five members (out of the total 10) to the CC. Such a working relationship though existed between Ranil Wickremesinghe and R. Sampanthan during 2015-2019 is hard to be recreated in the current political status quo. That could effectively make the CC dysfunctional. This had been a recurrent issue, since the CC came into being originally under the 17th Amendment to the Constitution in 2001.
These problems can be addressed through a lot less destructive ways than it was done under the 20A. So are other inadequacies and practical problems associated with the 19A. The fact of the matter is that the 20A is not meant to make the commissions workable. It is about subjugating them. It is effectively rolling the clock back to the 1990s.
Justice Minister Ali Sabry asked in a Television talk show: “Can we eat independent commissions?” Rather than being edible, they are there to prevent the state institutions being swallowed up by the nepotistic and power-hungry politicians that the Third World politics is synonymous of.
Make no mistake, there will be consequences. The degree of credibility the international community accorded to the Sri Lankan state has correlated to the independence of its institutions. The 18A accorded the President with near-absolute power, but its government lurched in the fringes of the international community. Courts lacking independence and Chief Justices appointed from acolytes strengthened the case for international war crime investigations on the ground that local institutions lack integrity. The accreditation of the National Human Rights Commission was downgraded.
This government has so far benefited from the legitimacy of its institutions. Not squandering that windfall would be in its interest.
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