Monday, 07 September 2020 04:22

06.09.2020 - Consider Deferment of 20th Amendment

The proposed 20th Amendment to the constitution has been approved by the cabinet of ministers and put before the general public prior to being debated in parliament. This far reaching constitutional change seeks to centralize power in the institution of the Executive Presidency with the justification of ensuring stability in the country and safeguarding national sovereignty. In terms of the amendment, the President can remove the Prime Minister, a member of the cabinet, any other minister or a Deputy Minister and authority to dissolve Parliament after completion of sittings for a period of one year. This massive transfer of power to the Presidency has been justified to the electorate as stemming from the inability of the previous government to govern effectively under the 19th Amendment to the constitution.

The 20th Amendment also empowers the President to make appointments to top positions of the state having obtained observations of the Parliamentary Council, which is made of members from Parliament. The President will accordingly be empowered to appoint the Chief Justice and judges of the Supreme Court, the President and the judges of the Court of Appeal, the Attorney General, the Auditor General and also to make appointments to the Election Commission, the Public Service Commission, Judicial Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission. Unfortunately the proposed Parliamentary Council will have no civil society representation and can only advise the President. The previous 10 member Constitutional Council, which included 3 members of civil society, made these appointments.

The time frame for Bills to be challenged in the courts has been reduced from the previous two weeks to one. The Urgent Bills, a concept which was introduced by the 1972 Constitution had been misused by the successive governments in the past to pass various Bills. The extremely short time frame will compromise people’s right to know and constrain public discourse to challenge a Bill in a court of law. The sweeping powers given to the Presidency takes away the checks and balances on the powers of the President brought in by the 19th Amendment which it supersedes. The National Peace Council is particularly regretful that a constitutional provision eliminated that is relevant for our work is article 33 (1) (b) which said that the President shall “promote national reconciliation and integration.” It was the President’s office that was warranted by the 19th Amendment to be the driver of reconciliation.

We therefore request the government to reconsider the need to proceed with the 20th Amendment in its present formulation as it is excessively centralizing and not reflective of the plural nature of our society. There is no urgency for the 20th amendment at present, which is an interim measure until the formulation of a new constitution, and we fear this may undermine the good work done by the office of the President to date, including providing entry to educated professionals to parliament through the national list, providing employment to many thousands of people and relief to those affected by the Covid induced economic downturn in terms of delayed loan payments and other development measures.

The 20th Amendment is by and large a return to the 18th Amendment which was passed in 2010 and made the Parliament subservient to the Presidency. We note that the governance practices of the pre-2015 period, and their negative consequences, contributed to the change of government at that time. The entire basis of the 19th Amendment of 2015 was the need to ensure that the Rule of Law prevailed over the rule of men and that misuse and abuse of power should be prevented through a system of checks and balances in which the independence of institutions such as the judiciary was safeguarded to the maximum.

The main negative outcome of the 19th Amendment was the inability of the former President and Prime Minister, and other government leaders, who came from two opposing political parties to work together. This led to a paralysis in the government which prevented it from governing in a problem solving manner. The current government does not suffer from the same constraint as they come from not only the same party and enjoy a 2/3 majority in Parliament, but also the President and Prime Minister are from the same family. An option for the government would be to focus on formulating a new constitution in which the weaknesses of the 19th Amendment can be addressed along with a reform of the electoral system. This could be a through a well thought out consultative process in which the opposition parties and civil society are also included that will enable the new constitution to be passed consensually by Parliament and the people.

Governing Council
The National Peace Council is an independent and non partisan organization that works towards a negotiated political solution to the ethnic conflict in Sri Lanka. It has a vision of a peaceful and prosperous Sri Lanka in which the freedom, human rights and democratic rights of all the communities are respected. The policy of the National Peace Council is determined by its Governing Council of 20 members who are drawn from diverse walks of life and belong to all the main ethnic and religious communities in the country.