21st Amendment: A Way Out of Sri Lanka’s Multiple Crises?

Photo courtesy of The Indian Express

DR. SAKUNTALA KADIRGAMAR-04/30/2022

Sri Lanka’s economic crisis has attracted global attention and national fury. The irresponsible decisions of President Gotabaya Rajapaksa – cutting taxes, banning fertiliser and continuing with non-essential infrastructure projects financed by debt – catalysed these crises. But this pattern of unaccountable governance was largely possible due to the centralised structures of decision making embedded in the executive presidency and the lack of internal democracy in Sri Lanka’s political parties that have enabled the party leadership of all political parties to quell dissent within their parties. The authoritarian style of governance was further exacerbated in the present government, given the capture of major ministerial positions by members of one single family. At this juncture, public anger and lack of confidence is directed against the president, the prime minister and the government and has even extended to a call for sending the 225 (i.e., all members of parliament) home.

The government of Sri Lanka has belatedly begun sensitive negotiations with the International Monetary Fund (IMF) and the IMF requires a stable government with which to negotiate. A stable government must have legitimacy, authority and capacity to implement the debt-restructuring plans and reforms. This does not necessarily mean the same government that is in place. The public do not believe that the government that created this crisis has the capacity to lead us out of it. Furthermore, the public believe that the government should be held accountable for the crisis they created. Responsibility and accountability are key.

Many stakeholders recognise that it is not only the incumbent president who is responsible but the institution of the executive presidency is a contributing factor. The centralisation of power in the executive presidency has made it possible for succeeding presidents to also abuse their power and make unwise decisions without any checks. This is an underlying cause for the country to come to such a pass.

The economic crisis and the governance crisis walk hand in hand. Sri Lanka is locked within a constitutional straight jacket that makes it very difficult to remove the president, dissolve parliament in the middle of its term. If there is no competent and credible government in place, and debt restructuring becomes impossible, and the shortages and price hikes continue to increase, the protests may turn violent or the government may unleash further violence. The violence may become uncontainable and the country ungovernable.

The need of the hour: A constitutional remedy and stakeholder consensus

There is an unprecedent coalition of stakeholders – trade unions, professional associations and the business community, political groups and ordinary citizens who have come out against the government. Most significant is the involvement of young people in the protests.

The protestors on the streets have also initiated their determination to initiate a public impeachment motion against President Rajapaksa detailing and elaborating on 11 points that in their view demonstrated and establish his mental incapacity. While the public impeachment motion against President Rajapaksa may not be grounded in law, in the context of the mass protests and strikes it cannot be dismissed as mere political theatre.

However, the 21^st Amendment presented by the leader of the opposition envisages a government formed out of the existing parliament. This does not sit well with the protestors who demand to send the 225 home. It is in effect a call for new elections. Elections at this time pose challenges. The memories of the Greek crisis and its multiple governments come to mind.

While people are unanimous in identifying the problems can we identify the solutions and implement those solutions? Our politicians are not known for their ability to build consensus and we have been paralysed by the rigidity of rigid constitution. This is not the first time that the public has demanded the abolishment of the executive presidency and clamoured for far reaching constitutional reform, only to be let down by parliament.

The SJB proposals for the 21^st Amendment

The proposals embedded in the 21^st Amendment draw heavily on the 19^th Amendment to the constitution. They attempt to address the problems that were not envisaged during the drafting of that amendment and the political issues and legal challenges that have since emerged during the uneasy coalition government and in its aftermath.

The passage of this proposed amendment depends on broad support in parliament across party lines. The pressures from the street give us hope to believe that parliamentarians will be cautious about dismissing the amendment without careful consideration. This amendment is also prosed in a context where the impeachment of the president and a no confidence motion against the prime minister are proposed.

The aims of the proposed 21^st Amendment are to achieve competent, efficient, transparent and accountable government and the values mentioned in the preamble to the constitution as necessary requirements of the economic recovery of the country. The amendment seeks to abolish the executive presidential system and replace it with a system that reinforces constitutional democracy founded on the separation of powers and checks and balances. By reinstating the Constitutional Council that advises on and reviews key appointments and the independent commissions it ensures checks on political interference and on public administration. It establishes a new Council of State to provide advice on matters of governance and sectoral reforms and a new national security council to advise of security issues.

Under the proposed Bill the president will remain the head of state and the commander in chief. The president shall be elected by a majority vote in parliament for a five year term, renewable once. The president shall appoint as prime minister the member of parliament who enjoys the confidence of parliament. The president has no personal discretion in appointing and dismissing the prime minister; in both cases, the confidence of parliament is the sole test. The president shall act on the advice of the prime minister in the appointment and dismissal of cabinet and other ministers and in assigning subjects and functions to them.

The prime minister shall be the head of the cabinet of ministers. The prime minister vacates office on death, resignation, on ceasing to be a member of parliament, on losing a vote of

confidence, or on a defeat on the budget in parliament. When the prime minister loses office in any of these ways, parliament may elect another member of parliament to form a government. The vacation of office by the prime minister causes the dissolution of the government. The prime minister and the cabinet are collectively and individually responsible to parliament.

The amendment provides that upon parliament passing a motion of no confidence against an individual cabinet or other minister, such minister shall stand removed from office. There will be no more than 25 cabinet ministers and 25 other ministers (i.e., state ministers and deputy ministers).

Parliament is elected to a fixed five-year term but it may be dissolved sooner by a parliamentary resolution passed by a majority vote. Members of parliament who switch allegiances by crossing over may not accept ministerial posts in the government that they have joined for the duration of the parliamentary term. The Supreme Court’s jurisdiction regarding appeals by members expelled from a party is limited to legal merits of the expulsion and not the procedure adopted to expel the member.

The Constitutional Council is re-established, chaired by the speaker, with membership of the prime minister and the leader of the opposition, a nominee of the other parties in parliament and five independent members. The Constitutional Council makes binding recommendations to the president regarding appointments to the independent commissions and approve the president’s appointment to other key positions. The Governor of the Central Bank, The Port City Commission and the Right to Information Commission are added to the list of commissions that come under parliamentary oversight.

Provisions are made for the establishment of a National Security Council to formulate policy and monitor implementation of policy relating the national security, chaired by the Prime Minister.

There will be a Council of State. It is chaired by the prime minister and shall include the Minister of Finance, leader of the opposition and one member of parliament from another party to represent the views of the parties not represented by the prime minister and leader of the opposition. It will include the Attorney General and 12 other members who are not from parliament and are drawn from business and academia with expertise in law, political science, economic and science and will reflect the diversity and demographics of Sri Lanka and will provide non- binding advice.

Digging deep into the 21^st Amendment

The 21^st Amendment appears to be based on adroit reasoning and drafting. It does not touch the articles that require a two thirds majority and approval at a referendum. These include: Article 1 which protects the freedom sovereignty and independence of Sri Lanka; Article 2 its unitary character; Article 3 recognises the inalienable sovereignty of the people exercised through the powers of government, fundamental rights and the franchise; Article 6 the national flag, Article 7 the National Anthem and Article 8 National Day (4^th February) of Sri Lanka, Article 9 the foremost place of Buddhism in Sri Lanka, Article 10 freedom of thought and conscience and Article 11 freedom from torture. Neither does it touch Article 30(2) which states that the President shall be elected by the people and hold office for 5 years. It does not touch article 62 (2) that states parliament, unless it dissolves, shall function for 5 years until its term expires and the term cannot be extended. Thus by implication, the 21^st Amendment will not require a referendum to be approved.

Article 4 referencing the sovereignty of the people and the exercise of legislative executive and judicial power and the manner of exercising the franchise and Article 5 describing the territory of Sri Lanka, the number and formulation of administrative districts are specifically excluded from the articles requiring a referendum.  Surely the drafters would have included them in the list of provisions requiring a referendum if that was the intention?  If Article 4 was previously interpreted or inferred to require a referendum or linked to the preceding articles, and therefore considered to be unamendable by extension and association, there is a need to re-visit this line of reasoning.

Furthermore, while Article 3 regards fundamental rights as an aspect of inalienable sovereignty, only two of these rights (freedom of thought and conscience and protection from torture) are absolute rights, with all the other fundamental rights subject to some exceptions for varying reasons such as national security, protection of the community’s health, morals and other public needs. Thus Article 3 has not provided blanket protection with respect to the protection of fundamental rights and so cannot be interpreted to provide the same blanket protection to Article 4 which provides a set of forms and procedures for constituting and exercising executive, legislative and judicial powers and exercising the franchise in Sri Lanka.

However, Article 30(2), states that the president shall be elected by the people and hold office for 5 years. The 21^stAmendment, does not alter it. It adds provisions to follow Article 30(2) which provide for parliament to elect the president if the post falls vacant due to death, resignation of removal from office. This has a precedent. When President Ranasinghe Premadasa was assassinated in office, parliament elected his successor. The 21^st Amendment, while leaving intact Article 30(2), adds conditions – the president so elected by parliament to replace a president who has died, resigns, and has left public office –may not hold a post in a political party or have been elected twice before.

On a closer reading of the constitution and the articles that cannot be changed without a referendum, do not include the powers relating to the executive presidency. It appears that while the executive presidency was bolstered by the extraordinary powers outlined in the constitution, these are not unamendable powers. Parliament may amend these powers by amending the constitution. What cannot be amended without a referendum is the post of the executive president, elected by the people. The franchise of the sovereign people is exercised in a variety of ways – both directly and through their elected parliamentary representatives and in eleven specific circumstances they require two-thirds of the people’s representatives in parliament to approve the changes and be endorsed in a referendum. The executive presidency has developed and reinforced its own pranic force, in respect of the nature and scope and permanency of its powers. Just as the powers of absolute monarchs were tamed and contained into constitutional monarchs by the People through their representatives in parliament, the parliament of Sri Lanka has the power to tame and trim the powers of the presidency without abolishing the presidency per se.

However, there is a further point to consider. If changing Article 4 does not require a referendum, does changing the ways and instances in which the franchise is exercised require a referendum? Can the election of the president by representatives of the people in parliament also be regarded as the exercise of the franchise by the people, as envisaged in Article 4 and thus does changing the manner in which a president is elected require a referendum?  This may be a debate for another moment as this amendment is focused on the specific circumstances of replacing a sitting president. However, it is one to explore.

Although the 21^st Amendment does not refer to an interim government it implies that there will be a president who does not see though a full five year term and may be replaced by parliament with a majority vote before the next scheduled parliamentary election.

The 21^st Amendment replaces the existing complicated process of impeaching a president elaborated in Article 38 of the constitution. Again, this is not an article that requires a referendum. In the event that the 21^st Amendment is passed swiftly, before formal steps to impeach the president are taken, this amendment will provide the procedure for impeachment.

The 21^st amendment includes a new chapter to deal with Constitutional Commissions. It increases the number of constitutional commissions from four to eleven and with exception of the Election Commission the other commissions that include: the Public Service Commission. National Police Commission Audit Service Commission, Human Rights Commission, Commission to investigate allegations of Bribery, the Finance Commission, Delimitation Commission, National Procurement Commission, the Right to Information Commission and the Colombo Port City Commission, will be under parliamentary oversight and key appointments to these commission will be made by the Constitutional Council. In the context of the mal-administration and arbitrary decision making that has taken place in recent times, it will be welcomed by the public and parliamentarian will be hard pressed to reject these amendments.

The amendment lists in a schedule, the key posts that require either recommendation by the Constitutional Council to the President or approval by the Constitutional Council as required under the constitution. It also provides protection of due process of law for removing key members of the commissions, the superior courts, the Attorney General, members of the Monetary Board among others. While the Port City Commission comes under parliamentary oversight no specific mention is made to the commissioners and whether the Constitutional Council is to be engaged in key appointments.

Given that the leader of the opposition is also a member if the Council of State, it is not clear as to who will receive the advice of the Council of State. Does it advise the cabinet or parliament? It is not clear if the advice given by the Council of State will be made public or at least to parliament and the reasons for rejecting their advice is to be provided to Parliament. If this is not to be the case, there is no value to the institution and it will be a cosmetic façade representing inclusion and professionalism.

The amendment recognises the executive power to vest with the cabinet of ministers. It includes ceilings on the size the cabinet – 25 ministers and an additional 25 state/deputy ministers, and provides for a cabinet minister to be removed by a parliamentary vote of no-confidence. This provides a measure of parliamentary oversight and control over irresponsible cabinet ministers who may be otherwise shielded by the prime minister and members of the cabinet. It further prevents parliamentarians from profiteering through opportunistic crossovers from opposition to government by not permitting them to join as cabinet or state ministers.

The provision that recognises the Supreme Court’s jurisdiction regarding appeals by members expelled from a party is limited to legal merits of the expulsion and not the procedure adopted to expel the member may raise concerns. If the procedure adopted to expel members do not conform to principles of justice and due process and the courts are not permitted to address them, this may be regarded as a violation of the democratic and governance norms that the amendment seeks to restore.

If parliament rejects the Appropriation Bill the prime minister is deemed to have resigned and the cabinet is dissolved, except if it is within the first two years of the sitting of that parliament, where a second reading is required of the Appropriation Bill.

Article 70 is amended to provide for parliament to pass by a majority vote, a resolution to dissolve parliament before its term expires.

Article 78 is amended to increase the time between the gazetting of a Bill and placing it on the order paper to 14 days; and article x is amended to ensure that even acting appointments to the judiciary are done in accordance with prescribed procedures.

What is not addressed in the 21^st Amendment

The focus of the 21^st Amendment is on governance reform and limiting the powers of a rampant executive presidency that has been used for decades to make arbitrary, undemocratic decisions that have proved to be harmful to the policy and undermined constitutional democracy. What is not addressed is the national question, minority rights, and the devolution of power. These changes will require a referendum and the decision has been made not to overload the agenda at this critical time.

The 21^st Amendment proposes changes without violating the articles prescribed in the constitution to require a referendum. Although Sri Lanka is facing unprecedented crises, this is an attempt to address it through a constitutional process. The challenge is to get bipartisan support from parliament to manage this process. Where political leaders and institutions and legal institution fail to deliver, they become discredited and, in such circumstances, they have been swept aside. The Arab Spring, the transition in Sudan, the call for Reformasi in Indonesia the People’s Power movement in the Philippines, are cases that we, as citizens of Sri Lanka and our parliamentarians and our president should note. A managed change is superior to a disorderly exit. Exceptional, unconstitutional, violent transitions create precedents that are difficult to overcome.

Dr. Sakuntala Kadirgamar is Executive Director of the Law and Society Trust