For a meaningful constitutional change

The Supreme Court has ruled that the 22nd Amendment (22A) to the Constitution can be adopted with a two-thirds majority in Parliament with some clauses requiring a nationwide referendum. The Government has announced that it would amend the clauses that require a referendum. The 22A is expected to reverse the power grab by the executive through the 20A in 2020. 

The Bill in its current form fails to restore Constitutional checks and balances that were put in place through the 19A and does not curb the excessive powers vested in the President. The Bill proposes the re-establishment of a Constitutional Council that would provide recommendations to the President on appointments to independent commissions. The proposed amendment will also provide provisions for the President to hold the Defence Ministry and allow him to further assign to himself any other portfolio and function on the advice of the Prime Minister.

While this is a slight improvement over the current system, in which the President can and, in fact, has held multiple Cabinet posts, it still fails to address the excessive concentration of authority under the presidency.

During the Yahapalana administration when the transitional clauses of the 19A were effective for the incumbent, former President Maithripala Sirisena held the portfolio of Minister of Defence and brought several institutions under the ministry which had little relevance to the subject of defence. President Gotabaya Rajapaksa also brought within the Defence Ministry, many departments and institutions that should not be conjoined with that Ministry, including the Department of Registrations, the Telecommunications Regulatory Commission, and the NGO Secretariat.

Furthermore, the proposed amendment does not do away with the President’s power to dissolve Parliament after two and a half years since the parliamentary elections or within that period if requested by a simple majority of Parliament. This allows for the distortion of the people’s mandate and the arbitrary and politically expedient machinations by the President.

If the Gotabaya Rajapaksa presidency proved anything it is that the executive presidency, with unrestricted power and authority is not only dangerous but also inefficient and unsustainable for Sri Lanka. The fortunes of the whole nation were entrusted with the judgement, acumen and competency of a single individual and the results are obvious for all to see. 

The current economic crisis could have been avoided or at least mitigated if there was a degree of oversight by the Parliament. Despite the legislature being responsible for the finances of the Republic, there was hardly an opportunity for Parliament to intervene while the Government of President Rajapaksa made one policy blunder after another. In any other parliamentary democracy, the Governor of the Central Bank, the minister in charge of finance and responsible public officials would have been under constant scrutiny. Here, instead of such checks, the minister in charge of finance was hardly in Parliament even to answer a question from the members of the Opposition and the then governor of the Central Bank refused summons by the legislature.

If the proposed amendment is to be meaningful it must in the very least re-establish the status quo that prevailed under 19A sans the transitionary clauses. It is imperative that the proposed amendment is not merely a cosmetic exercise but a genuine effort that offers a new governance structure that would create greater democratic space, create checks and balances on each branch of the State and address the ambiguities and deficiencies that were created by previous constitution-making efforts.