The 20th Amendment to Sri Lanka’s Constitution that drafted to expand the powers of the Executive President was passed in Parliament with a two-thirds majority, following a two-day debate.
Eight opposition MPs voted in favour of the legislation despite the collective party decision to oppose the bill. Following as many as 39 petitions filed by opposition parties and civil society groups, the Supreme Court determined that the passage of the legislation required only a two-thirds majority, except for four clauses that needed additional public approval through a referendum, unless they were amended in line with the determination.
The 1978 constitution of Sri Lanka itself is filled with anti-democratic and authoritarian attributes. The general public had not been given any opportunity to take part the constitutional mechanism of the drafting the constitution whereas president J.R. Jayawardana envisaged to create an executive presidency in order to implement neoliberal economic reforms which were introduced to the world in the 1970’s.The Sri Lankan people had enough experiences as to how the executive power had been misused violating rights of all the segments of the society specially working class.
Since very inception of the 1978 constitution the progressive movements and the individuals have been fighting to reduce the massive powers bestowed to the executive president pave the way for devastating consequences such as 1983 riots,1988/89 youth massacre etc. One of the rational outcome of the said protracted struggles was passing 19th amendment to the constitution which certain powers were conveyed to the parliament and constitutional council. However the Gotabhaya Rajapaksha regime after securing 2/3 power of the parliament from the general election held on August 2020 brought a bill to repeal the 19th amendment and reassemble the executive presidency as it was remained before the 19th amendment. The said new bill namely 20th Amendment to the constitution bill brought the following amendments to the constitution among several other amendments.
To reduce the time period within which a Citizen is given to study any proposed Bill which may be made law by the Legislature and to introduce Article 122 whereby Cabinet of Ministers can introduce to Parliament Bills ‘urgent in the national interest. The nature of ‘Urgent Bills’ passed in to laws thus far amply demonstrate that this provision has only been used to surpass people’s rights to challenge legislation in the Supreme Court before it is enacted. That was the only opportunity that people having to take part the legislative process. Otherwise once the members of parliament are appointed by the people there is no mechanism to recall them or challenge their undemocratic legislations. Before 19th amendment there was a section like this where most of the awful acts such as Recovery of Loans by Banks(special provisions) Act, Amendments to the Universities act allowing to privatize the education and 18th Amendment to the constitutions were brought as urgent bills. The ulterior motive behind this proposed amendment is nothing but Rajapaksha regime would definitely bring undemocratic and oppressive laws.
Clause 6 of the Act related to Article 41(A) empowers the President to at his discretion Appoint all Judges of the Supreme Court and Court of Appeal including the Chief Justice. Furthermore Clause 25 repeals Article 111D of the Constitution and proposes a new Article 111D whereby the Judicial Service Commission will be appointed by the President. Clause 26 amended Article 111(E) (6) which grants absolute discretion to the President to remove any member of the Judicial Service Commission. Clause 6 of the Act introduced Article 41(A), under which, the President has the sole discretion to appoint the Election Commission consisting of three Commissioners. Clause 19 of the Act amended Articles 103(1) of the Constitution whereby the President also appoints the Chairman of the Election Commission at his discretion. Clause 19 of the Act amended Article 103(7) where the President at his unfettered discretion can grant leave for a period of two months and within that period appoint another person to be a temporary member of the Commission.
The Amendment in repealing Article 35 grants immunity to the President to commit Fundamental Rights violation without being held accountable to it. Even though the existing constitution has given a vast immunity at least there is an opportunity exercise fundamental jurisdiction against the president by making Attorney general as a party.
The existing Constitutional Council constituted in the provisions of Chapter V11A of the Constitution replaces it with a Parliamentary Council. One of the primary functions of the Constitutional Council was to check the President on the appointments he made to Commissions such as the Judicial Service Commission, the Election Commission and the Human Rights Commission amongst others the bodies of which should be independent of any influence by the Executive. Therefore the Constitutional Council was granted powers to ‘recommend’ persons to such commissions (Article 41B(3) and the President is bound by those recommendations when he makes his final appointments.Under new Act, the Parliamentary Council has little powers to check the Executive in making his appointments. The Parliamentary Council is given powers only to send ‘observations’ to the President on his choice of appointment to Commissions such as the Election Commission, the Public Service Commission, the Human Rights Commission and the Judicial Service Commission amongst many such other Commissions set out in Part I and Part II of Schedule II to the amended Article 41(A) and persons set out under Schedule 1 to the said proposed Article which includes the Chief Justice and the Auditor General amongst others. Further Clause 6 also empowers the President to ‘remove’ appointed persons from their offices when there are no enacted legislations prescribing the method of their removal. The President is not required to obtain ‘prior approval’ from the Parliamentary Council as was required of him under the existing Article 41B(5) where the President was bound by the ‘prior approval’ of the Constitutional Council before he could remove such a Chairman or a Member of a Commission or any person appointed under the existing Article 41B(1) and Article 41(C)(1).
The new Act amendment Non-Cabinet Ministers and Deputy Ministers which the President at his discretion can appoint as the Cabinet and further gives unfettered powers to remove any Minister, Non-Cabinet Minister or Deputy Minister he appoints at any time the President so desires. Under new Act the entire functions of the Cabinet including the position of the Prime Minister and run a Government single handedly after the dissolution of Parliament.
The impact of the Covid 19 has intensified the economic crisis which has been gradually developing during the past decade. On the other hand Sri Lanka being an island situated in a geographical hub in the Indian Ocean now it has become part crossfire between US and China imperialism.17 trillion worth of debt burden has now escalated and the country was trapped in the web of debts. In order to carry out neoliberal economic structure there is no any other option other than curtailing public welfare and exploits the workers. In order to curb the resistance from the public against the neoliberal reforms the oppressive institutions must be strengthen. The Rajapaksha regime is attempting to remove the remaining democratic structures and bodies by way of a new amendment to the constitution.