Constitutional amendment curbing Sri Lanka President's powers kicks in

A key constitutional amendment that reduces some powers of the executive presidency and prohibits dual-nationals from serving in parliament has now come into effect in Sri Lanka.

Mahinda Yapa Abeywardena, the speaker of Sri Lanka’s Parliament, signed the text of the 21st Amendment to the Constitution on October 31 and the law comes into effect from that date. The amendment, passed by parliament on October 21 after a two-day debate, restores some of the checks and balances imposed on the executive presidency while also strengthening the hands of parliament.

The 21st Amendment (21A) repealed some provisions of the 20th Amendment (20A) that was earlier passed under former President Gotabaya Rajapaksa. That amendment, passed by a parliament dominated by the Sri Lanka Podujana Peramuna (SLPP) party of the Rajapaksa family, had removed most checks and balances imposed on the executive presidency under the 19th Amendment (19A) and given near absolute power to Gotabaya Rajapaksa.

21A re-establishes a Constitutional Council (CC) that had earlier been in place under 19A. The 10-member CC will comprise seven MPs including the speaker, Prime Minister and Opposition Leader as well as three nominees from outside Parliament.

The council, aimed at depoliticising the country’s public service, will be tasked with recommending nominees to serve in the independent commissions such as the Election Commission, Public Service Commission, Police Commission, Human Rights Commission and the Commission to Investigate Allegations of Bribery or Corruption.

It will also be responsible for approving nominees to key judicial and government positions including the chief justice and justices of the Supreme Court, the president and judges of the Court of Appeal, the attorney general, the auditor general, the inspector general of police and the governor of the Central Bank.

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The re-establishment of the CC is a crucial element in the move to reduce powers of the executive, as 20A had abolished the CC and replaced it with a “Parliamentary Council” (PC) that was criticised for existing merely to rubber stamp appointments made by the president. The PC could only make “observations” to the president regarding his nominees to serve in independent commissions, judicial and government posts. The president was only obliged to take those observations to account. There was no bar on him to ignore the PC entirely. Under 21A however, the president cannot make any appointments to these key positions without the express approval of the CC.

The call to rein in the executive presidency was one of the main demands of the ‘Janatha Aragalaya’ (People’s Struggle) movement, whose street protests forced former President Gotabaya Rajapaksa from power in July this year and many MPs, especially in the Opposition, made a point of mentioning this fact during the debate. It is quite clear that 21A would never have seen the light of day under the current parliament had the protest movement not come into being.

Constitutional amendment not a cakewalk

Yet it was no cakewalk. A constitutional amendment requires a two-thirds majority in the country’s 225 seat legislature and it required weeks of intense negotiations to hammer out a draft that could obtain the agreement of such a majority. In fact, the amendment’s fate hung in the balance almost until the final day of the vote given that it had created a significant split within the SLPP.

The reason for the split was that the amendment reinstated a clause into the Constitution preventing dual citizens from being Members of Parliament. This effectively shut Parliament’s door for the SLPP’s ideologue and main strategist Basil Rajapaksa, who is a dual Sri Lankan-US national. Rajapaksa, a former finance minister, is a brother of both former Presidents Mahinda and Gotabaya and is widely regarded as the architect of the SLPP’s remarkable and rapid rise to power.

Such was Basil Rajapaksa’s influence within the SLPP that it was this particular clause, rather than any that reduced the president’s powers, that ultimately left the amendment’s fate uncertain in the days leading up to the crucial vote.

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The debate on 21A was earlier supposed to take place on October 6 and 7, but prime minister Dinesh Gunawardena told Parliament on October 6 that the government would like to debate the statement made to parliament by President Ranil Wickremesinghe, the day before, regarding the country’s economic situation.

Gunawardena tried to deflect the blame and place the onus of the decision not to debate 21A as scheduled on the Opposition, saying the main Opposition Samagi Jana Balawegaya (SJB) led by Opposition Leader Sajith Premadasa had informed him it would not be able to support the bill. This was partly true, for the SJB had indicated it would not be able to support some of the clauses in the draft. What the PM failed to mention but was widely known however, was that the SLPP too was split on supporting the amendment.

With the debate postponed, urgent discussions were held between various parties to iron out differences.

Though the SJB and other Opposition parties finally signalled their support for the amendment, Basil Rajapaksa’s loyalists in the SLPP held out stubbornly, insisting that the dual citizenship clause be removed from the draft. But as the days ticked by, it became increasingly clear that Rajapaksa’s influence within the party had waned.

The final parliamentary group meeting of the SLPP held in Parliament on October 21; the day of the vote, confirmed that the Basil loyalists had lost. The meeting, chaired by President Ranil Wickremesinghe, saw Basil loyalists once again insisting that the dual citizenship clause be removed, but the call was met with strong opposition from other SLPP members.

The turn of events during the vote

In the end, the amendment was passed by a final vote of 174 to 1. A total of 49 MPs from the government and Opposition were absent at the time of the vote. Only one SLPP member voted against the bill but about 25 others from the party were absent when the vote was taken. Some had made sure to miss the debate and vote entirely by going overseas, while others reported sick or informed they could not attend due to prior engagements. Several turned up for the debate but left Parliament at voting time.

The results indicated that the Basil Rajapaksa faction within the SLPP had been reduced to less than 25 members.

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In an interesting turn of events, though former President Mahinda Rajapaksa was absent at the time of the vote, his elder brother Chamal Rajapaksa, son Namal Rajapaksa, and nephew Shasheendra Rajapaksa voted for the amendment. Chamal, the eldest of the Rajapaksa brothers, had publicly stated earlier that he believes Mahinda Rajapaksa should have retired from politics in 2015 without seeking an unprecedented third term as president.

Namal Rajapaksa meanwhile, is being groomed to take over the leadership of the SLPP after Mahinda and has his eye on being a future Presidential candidate. His move to vote for the amendment is seen as a sign he intends to break ranks with his uncle and chart his own course within the party.

While 21A reimposes some checks and balances on the executive, it is not a complete return to 19A. Constitutional experts have pointed out that under new provisions of 21A, the government will have control of seven of the 10 members in the CC when the President and government are from the same political party. As such, there are fears that the amendment does not sufficiently guarantee the independence of the CC. 21A also does not change the clause enacted under 20A that enables the President to dissolve parliament after two and a half years of its five year term.

Not enough checks and balances on executive President

Opposition parties allege that in order to win the support of a majority of the SLPP for the amendment, President Wickremesinghe had been forced to give an assurance that he will not dissolve parliament after March next year when it completes two and a half years of its term. Instead, they claim the President had guaranteed that it will be allowed to serve out its full term. The prospect of an early election horrifies the SLPP, which knows it is in danger of being wiped out given the widespread public anger over the way the government had mishandled the country’s economic crisis.

Commenting on the new amendment after it was passed by Parliament, the country’s powerful lawyers’ union, the Bar Association of Sri Lanka (BASL) observed that “The 21st Amendment to the Constitution regrettably does not completely restore the status quo ante which prevailed prior to the 20th Amendment to the Constitution and does not place adequate checks and balances on the powers of the Executive President.”

Nevertheless, now that the amendment has been enacted into law, it is essential that the Constitutional Council appointed under it and the Independent Commissions which will be reconstituted thereafter be independent, impartial and be institutions which will help restore confidence in Sri Lanka and its institutions, the BASL added. It called on all parties to “firstly ensure the integrity of nominations to the Constitutional Council and to ensure that such nominations are devoid of partisanship and in a manner that will inspire public confidence.”

All independent commissions stand dissolved from the date of the amendment becoming law and will have to be reconstituted. However, the present members of the commissions will continue to function in their capacity until new members are appointed. The first task will be the formation of the Constitutional Council, which is expected to be completed in two weeks. It will then go on to consider nominations to the independent commissions. That process is expected to take another month.