The Constitutional reforms have remained a well-discussed topic in Sri Lanka over the last few decades.
The 22nd Amendment to the Constitution has now been gazetted. The Cabinet recently approved the proposed 22nd Amendment to the Constitution which is aimed at empowering Parliament over the President.
Former Bar Association President and President’s Counsel U.R.De Silva spoke to the Sunday Observer on how the new Amendment will curb the President’s unlimited powers while enhancing the role of Parliament and the efforts that need to be made by the people and parliamentarians alike to resolve the present crisis.
Background
“Several people and political parties have paid much attention to Constitutional reforms. In fact in 2015 when the 19th Amendment was passed, there was an assurance given by the ruling party at that time that this is a temporary movement and they are going to have a separate new constitution. But unfortunately, until 2019 they were not in a position to put forward it to the Cabinet and get it approved.
Thereafter when President Gotabaya Rajapaksa came into power he was of the view (and all the Government members also) that introducing the 19th Amendment was not a good move and ‘a strong President’ was the key requirement. As a result, they introduced the 20th Amendment which gave a lot of powers to the President and that could not be challenged anywhere.
“When the 20th Amendment was submitted, President Rajapaksa had assured that concerns over the dual citizenship clause in the 20th Amendment will be addressed when drafting a new Constitution. Assurance had been given by the President under the new Constitution ‘dual citizens’ will be prevented from entering parliament as representatives of the people. He had also assured that the powers of the President will be curtailed. A nine-member expert committee was then appointed to prepare the preliminary draft for a new constitution with PC Romesh De Silva as its Chairman,” he said.
The draft new Constitution was expected to be ready for Parliament’s approval by January 2022. However, nothing happened in the expected manner. The preliminary report of the committee has anyway been submitted to the President in April 2022.
Later developments
“As protests against the Government mounted with people flocking to the Galle Face Green demanding the President to step down, most agreed that curtailing the powers of the President would be the most prudent immediate solution to heal the civil unrest and there should be some sort of amendment to do that.”
In a bid to end the prevailing crisis in the country, both the Samagi Jana Balawegaya [SJB] and the group of 41 MPs who were sitting with the Opposition as independent members then presented two draft Constitutional Amendments as private member’s bills.
Minister Wijeyadasa Rajapaksa put forward the private member amendment on behalf of the 41-member independent group.
However, the Supreme Court held that the majority of clauses in the SJB’s proposed 21st Amendment are unconstitutional and hence will require a two-thirds majority in Parliament to be passed and also be approved through a public referendum.
Best solution
When asked whether the 22nd Amendment is a dire necessity at this juncture, De Silva PC responded in the affirmative.
“If you are going to have a separate new Constitution it has to be approved by a referendum and we need a people’s mandate for that. Until such time we have to have this particular 1978 Constitution and we can certainly make amendments without having inconsistent clauses in this particular amendment.”
De Silva PC said that, under the 1978 Constitution, if the President is not going to resign, removing the President is no easy task as it contains several complicated steps.
“ So if the President is not going to resign the best way of listening to the people who are there on the Galle Face Green would be to curtail the powers of the President.”
“ The full draft is not submitted at the moment, but according to Minister Wijeyadasa Rajapakshe, the main clauses of the 22nd Amendment would be;
1] President will be held accountable to Parliament.
2] The Cabinet of Ministers is also accountable to Parliament. So is the Prime Minister. The National Council is also accountable to Parliament.
3] Fifteen committees and Oversight committees are accountable to Parliament.
4)Nobody can ignore Parliament except the Election Commission. The Election Commission is not accountable to Parliament. It is an independent body. It has been given that power. That power was there right through.”
“So by introducing the new Amendment the Prime Minister and Parliament get the power to handle the present crisis along with the President, but without giving him unlimited powers,” he added.
National Council
Another notable inclusion is the National Council. “In the good old days, in addition to the main Parliament, there was another Body to which professionals were appointed.
The National Council is similar to that. These professionals will decide on steps to be taken regarding issues of national interest. “
The Constitutional Council too will be there to appoint various individuals including the Central Bank Governor who was appointed by the President earlier. Apart from that various other appointments too will be made by the Constitutional Council. Concerning appointing the Cabinet of Ministers, the President should get the advice of the Prime Minister. Earlier, it was not compulsory, the President had to do so only if he needed any help,” he added.
A ceremonial President
At the moment the President can keep any number of ministries. But the new Amendment will curtail that privilege and will allow a future President only to keep the Ministry of Defence under him. The President won’t have the full authority to appoint chairpersons to various commissions as well. The Constitutional Council should appoint those heads thereafter.
De Silva PC said that it is up to us, the people of the country, to decide whether we are going to have a President or not, whether it should be a ceremonial position or not. People’s consensus is a must concerning this. If the people are of the view that we should go without a President or we should have a ceremonial President with the Prime Minister heading the country, it should be done accordingly.
The 1978 Constitution was drafted on the basis that the President should have the power and should go forward. This Constitution was inspired by that of France which was prepared under its President Charles de Gaulle. The 1978 Constitution was drafted by prof. A. J. Wilson in consultation with former President J. R. Jayewardana.
“Thereafter we experienced the ‘President’s powers’ and there were a lot of discussions on why we should abolish it. Whether the Presidency will be abolished or all its powers will be curtailed should be considered by the people of this country, not by the parliamentarians. If we are deciding on that it should be done in a proper way. Until such time we should focus on our current crisis and should find ways to get out of it,” he emphasized.
De Silva PC said that if people are in constant disagreement with the parliamentarians, then the country will have no future.
“It will be really bad for the country. Foreign investments will not come in and they will not be in a position to help our country. The country won’t be stable.”
Joint effort needed
“My position would be that even if we bring in the 22nd Amendment, nothing will work properly unless the people and parliamentarians decide to get together and work in harmony. Then only we can proceed further. Otherwise, we will debate each and every day and the country will be in a bad position.”
He emphasized that it is absolutely necessary to think out of the box at this critical juncture.
“Amending the Constitution alone won’t solve our problems at this stage.
“President will go home, then what next? His powers will be curtailed. Then what next? So how are we going to develop our country? We need solutions. We need a country where people do not have to stay in queues for hours for petrol, diesel or gas. We need a country with no electricity issues and no essential commodity shortage,” he said.