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The new 20th Amendment will give President Gotabaya Rajapaksa more powers while Prime Minister Mahinda Rajapaksa’s role will become secondary.

In what seemed an emotional session, the Cabinet of Ministers on Wednesday approved the draft 20th Amendment to the Constitution. A note from the Legal Draftsman explaining the provisions came under close study. It was gazetted on September 2. Two weeks from then, it will be tabled in Parliament by Justice Minister Ali Sabry. That will pave the way for a citizen or organisation to challenge its provisions in the Supreme Court within two weeks. If there are no representations before the SC, Parliament could go ahead. Otherwise, it would have to wait for three weeks until the SC delivers the findings. There were different groups and political parties getting ready to move the SC on various provisions of 20A.  It is now likely to be introduced in Parliament by October this year.

One cannot conclusively say that some provisions in 19A have been removed altogether. They may find a place in the new Constitution for which an expert panel has already been named. If the proposed 20A by itself is a political milestone for the Sri Lanka Nidahas Podujana Sandanaya (SLPNS)-government, when it becomes part of the Constitution, there would be other significant developments, too.

One is the inclusion of some more members to the Cabinet, particularly Basil Rajapaksa and the appointment of Deputy Ministers. At least four more ministers have been earmarked, said a government source.  At present, only State Ministers have been sworn in and there are no deputies. The 20A empowers the President to have any number of Cabinet, State and Deputy Ministers. According to 19A, the Cabinet was restricted to 30, plus 40 State Ministers and deputies.

It was the Yahapalana government of Maithripala Sirisena-Ranil Wickremesinghe that diluted the powers of the executive presidency through the 19th Amendment to the 1978 Constitution. President Sirisena’s pledge at the 2015 presidential election was to abolish the executive presidency within 100 days. Instead, after his election, his government only focused on 19A. He continued as executive President thereafter.

That task of formulating 19A was the work of a trio — the then Prime Minister, Ranil Wickremesinghe, Abraham Sumanthiran of the Tamil National Alliance and Jayampathy Wickremeratne, a former Lanka Sama Samaja Party (LSSP) campaigner who later joined the Yahapalana government. Though J.R. Jayewardene was the architect of the 1978 Constitution, his nephew Ranil Wickremesinghe felt that some of the powers of the President were unbridled and chose to introduce 19A. The Rajapaksa protagonists argued that some of the 19A measures were to disable their front liners from contesting. “It was like tying our legs and asking us to run,” said one of them.

The fate of 13A

The Tamil National Alliance (TNA) which backed the move is now in a dilemma. It is worried about 13A and the resultant setting up of Provincial Councils. The State Minister for Provincial Councils and Local Government, retired Rear Admiral Sarath Weerasekera, is campaigning for the abolition of 13A and thus make the Provincial Councils non-operational. He is a key member of Viyath Maga and was handpicked for the portfolio by President Rajapaksa. Weerasekera has also said that the Provincial Police Force envisaged in 13A should not be allowed. Thus, sections of the opposition believe he is voicing the President’s views of a unified country with one law. However, President Rajapaksa has made no comments on the issue.

During a visit to India in February, Prime Minister Mahinda Rajapaksa assured that 13 A would be further strengthened. This amendment came through the ‘good offices’ of India after the July 1983 ethnic violence. The Indo-Sri Lanka Agreement of 1987, an official document between two sovereign governments, refers to the Provincial Councils.  Whilst some sections in Colombo’s diplomatic community argue that the Bharatiya Janatha Party (BJP) government of Prime Minister Narendra Modi would be less interested in the issue since it was fostered by its predecessor, the Congress government, it is being hotly contested. Other more informed circles say that “the matter would not be viewed that way. It would definitely be viewed as an assurance from one government to another and India would naturally be concerned.” It may be recalled that a TNA delegation met India’s High Commissioner Gopal Baglay days after the parliamentary election. Their concerns over the matter were discussed, said the same source.

The Provincial Councils’ future was raised at Thursday’s post-Cabinet news briefing.

Co-spokesperson Udaya Gammanpila said the PCs had not functioned for more than two years now. “This system was proposed specifically for the north and the east to tackle issues there. However, it was implemented in other provinces too. The country has functioned without PCs. There is not even a protest by anyone calling for PC elections,” he declared. Asked about 13A, he added, “There was no discussion at the Cabinet meeting.”

“The experts committee drafting the Constitution will study the matter at length. We will make our political decisions accordingly.”  He also asserted that “whether the Indo-Sri Lanka Agreement of 1987 is still active or not and whether the government is bound to such matters are legal issues. The experts committee will make known its stance and we will make political decisions accordingly.” The TNA supported the Yahapalana government to amend the Provincial Elections laws to empower the state to put off PC polls. The principal backers in this exercise were its leader Rajavarothayam Sampanthan and Abraham Sumanthiran.

Asked what he thought about the prospects of 13A being removed, Sumanthiran told the Sunday Times, “It would be the biggest mistake if the Government abolishes 13A. It is based on a bilateral agreement signed with India. This was signed to provide solutions to issues of the Tamils. We understand sections in the government are campaigning to abolish 13A which provides for the Provincial Council. That would be a grave error the Government will be making.

“The Provincial Council system in the North and East was non-functional for a long period, but in the other provinces the PC system was working. In the other provinces, there have been no calls for the abolition of the Provincial Councils. We will totally oppose any move by the Government to scrap 13A and the Provincial Council system.”

On April 28, 2015, just four months after Sirisena was elected as President, 19A was passed in Parliament with 215 voting in favour, one against, one abstention and seven absentees. The efforts were also backed by non-governmental organisations and groups, some from abroad. That was with the support of some western diplomatic missions. The reversal of those positions will not only confer stronger executive powers back to the President but also concretise the power base of the Sri Lanka Podujana Peramuna (SLPP)-led Government to an unshakeable position.

Don’t-question plea from President

Even before 20A becomes effective, President Gotabaya Rajapaksa was strongly assertive. Barely hours after the Cabinet decision, he declared that he would “not cancel under any circumstances” the appointments he had made. He has pointed out that “expressing opinions against these appointments will not only make the appointees unable to carry out their duties and responsibilities properly, but also will weaken the Government’s process by underestimating them in society.” That no doubt is a sensitive issue particularly to the media whose responsibility is to point out any inconsistencies or shortcomings. The Government is, of course, empowered to deny, clarify or in the event of the reports being wrong, even initiate legal action. A blanket ban could be harmful and tends to cause more damage. For this reason, President Rajapaksa should reconsider his decision.

One of the issues that have generated considerable controversy is the designation of Milinda Moragoda, a onetime Minister, as Sri Lanka’s High Commissioner to India. The Australia based Society for Peace, Unity and Human Rights for Sri Lanka (SPUR), one that backed the war efforts against Tiger guerrillas, urged the Government to re-consider the appointment. Among the eight reasons it said was one where Moragoda allegedly arranged a US Central Intelligence Agency (CIA) agent to sit at weekly intelligence assessment meetings in Colombo of all state agencies related to intelligence gathering. The Sunday Times learnt, this came with the approval of then Prime Minister Ranil Wickremesinghe. Media exposure and protests from intelligence top brass put an end to the matter. However, the CIA operative had by then gained substantial knowledge of the activities of local intelligence agencies, their operational mechanisms and even sources.

This week, President Rajapaksa also named Ravinatha Aryasinha, former Foreign Secretary, as Sri Lanka’s Ambassador to the United States. The current incumbent Rodney Perera is being re-called to Colombo. Aryasinha would have had to retire from his diplomatic career in ten months from now when the appointment came. The posting will give him an extended tenure. Aryasinha called on Prime Minister Mahinda Rajapaksa to thank him and will meet President Gotabaya Rajapaksa before his departure. Formalities for the posting are now being worked out by the Overseas Administration Division (OAD) of the Ministry of Foreign Relations.

As co-Cabinet spokesperson Udaya Gammanpila admitted at a news conference on Thursday, “quite honestly, we did not expect that we would get a two-thirds majority at the parliamentary election.” He is right. Now that they have got that overwhelming mandate, a government source familiar with the recent developments said, “some of the previous government’s constitutional changes were mala fide or in bad faith; with intent to deceive. Barring dual citizens from contesting elections was aimed at preventing Gotabaya Rajapaksa from contesting the presidency. He was forced to give up his United States citizenship. The prohibition on dual citizens contesting will be removed.  Placing a limit of 35 years on persons contesting the presidency, the source pointed out, was pointedly to prevent Namal Rajapaksa from contesting the presidential election. Now the age has been lowered to 30 years. In any case, born on April 10, 1985 Namal Rajapaksa is now 34 years old. The dual citizenship provision also prevented Basil Rajapaksa from contesting at a parliamentary election. The question asked is if a dual citizen is entitled to all other benefits, why deny him or her the chance to contest? Of course, that is only one aspect.

The other aspect is the likelihood of at least one or two independent commission being abolished or changed. Some may be incorporated in the new Constitution. One that will come under the President is the Police Commission. Though the intentions for setting it up, to obviate political interference, were the cause, it became a much more politicised body. The party in power, the Sirisena–Wickremesinghe government used it as a handy tool to punish or transfer or promote Police officers of their liking. On many occasions the Commission did not intervene in instances where its role became necessary. There is also a paradox to this situation.

A top official, who was previously in the Defence Ministry when Gotabaya Rajapaksa was Defence Secretary, was placed in an important position in the Commission by a Yahapalana politician, once in charge of the department, to execute his orders. The common factor was that the two of them were connected and came from the same electorate. He carried out all the directives of the Sirisena–Wickremesinghe government thus nullifying the intended goals of the Commission. His previous role in the Ministry of Defence has also remained a subject of investigation. There was an attempt to obtain a court order on alleged wrongdoings by then Defence Secretary Rajapaksa, citing documents signed by him, to avoid arrest, but it failed.

Parliamentary Council

The apex of independent Commissions will be a Parliamentary Council. It will comprise the Prime Minister, the Speaker, the Leader of the Opposition, the Prime Minister’s nominee, (who shall be an MP), and the Opposition Leader’s nominee, who shall also be an MP. The council will make observations to the President on who should be chairpersons and members of the different commissions. The council is required to make these observations within a week. If it fails to do so, the President will make an appointment by himself. The 19th Amendment placed that responsibility in the hands of the Constitutional Council (CC). Instead, after 20A, the new Council will only be empowered to make observations.

The CC has also been in many instances functioning as a political tool. It has been making appointments including those of the Inspector General of Police. Under 20A, such an appointment will now be made by the President. Though the principle behind the appointment of a CC was to obviate politically aligned persons, ironic enough, that is exactly what it did. The Chairpersons and members of the independent commissions they picked were those politically favourable to them. Thus, the difference here is that the President will make his choice now under 20A. One way, that becomes effective for the person who he picks will take forward his and the government’s policies. A CC deciding for him, in the past, has not proven to be good although the intentions were good.

Under 20A, instead of the CC, the President will appoint members to the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission.  He will also appoint the Chief Justice and Judges of the Supreme Court, the Attorney General, the Auditor General and the Parliamentary Commissioner for Administration (Ombudsman). The Right to Information law will also remain.

The 20th Amendment will also resolve a lacuna over whether the Speaker ceases to hold office when Parliament is dissolved. In fact, the last Speaker Karu Jayasuriya did not exercise his functions since dissolution except to summon CC meetings. There is provision now to enable the Speaker to continue in office until a successor is elected. So will be the Leader of the Opposition and Members of Parliament who could continue until after a General Election following dissolution.

There is no gainsaying that the Election Commission remains an independent body. This Commission, together with others, came into being with the introduction of 17A. The powers enjoyed by the Commission have had very salutary effect. For example, election violence was sharply curtailed. So much so, there were no major incidents either at the last presidential or parliamentary election.

On the other hand, sections in the opposition had assumed, wrongly though, that with a two-thirds majority in hand, the Government would move towards strengthening the office of the Prime Minister and resultantly lessen the powers of the Presidency. Social media was full of stories of how Mahinda Rajapaksa would thus become powerful whilst brother Gotabaya Rajapaksa would hold a nominal position. That was not to be and was wrong. The decision to repeal 19A and introduce a 20A confers more powers on the Presidency while the role of the Prime Minister becomes secondary. He or she could be removed from office by the President.

Contrary to 19A provisions, 20A allows the President to remain in charge of any subject or function not assigned to any Minister. This includes the subject of defence over which there were contradictory opinions. The 19th Amendment, some legal experts argued, did not allow the President to hold this subject. However, the Government’s legal advisors argued otherwise. This was based on the provision of the Constitution’s article 4(b) which said that “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People.” However, the absence of it being defined in 19A raised issues. Now, the ambiguity will be resolved. The President, as in the past, is empowered to appoint heads to the Army, Navy and Air Force.

The estrangement between the two main Yahapalana partners, the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP), then prevented President Sirisena from dissolving Parliament and call a general election. In terms of 19A, that was only possible when Parliament had completed four and a half years of its five-year term. The feud went on causing considerable damage to the country’s economy. The 20th Amendment has sought to remove this provision. It has also sought to restore full immunity for the President for anything done or to be done by him in his official or private capacity while holding office.

20A interim measure

The 19th Amendment had prohibited the introduction in Parliament of urgent bills. This has been restored under the new amendment if such bills are in the “national interest.” It could be referred to the Supreme Court which will be required to give its determination within 24 hours to three days.

Co-cabinet spokesperson Gammanpila told Thursday’s news conference 19A was flawed since it had three different power centres — the Presidency, the Prime Ministerial office and the Speaker’s office. “Under the present constitution, there is now one specific leader to govern the central government. That is why it was necessary to place the executive powers in the hands of the President,” he pointed out. Spokesperson and Minister Keheliya Rambukwella added that 20A was an interim measure. He said a new constitution embracing all provisions would be introduced soon.

Gammanpila’s remarks underscore the fact, which he admitted, that powers are scattered with the President, the Prime Minister, and the Speaker. On the one hand decisions for the President are made by the CC on the grounds that it is apolitical. It is the same case with the Premier. The Speaker has also been making incursions into the foreign policy sphere. The best example is how the controversial USAID gained a foothold in Parliament drawing now Premier Rajapaksa to tell the House that it was highly improper. USAID not only sponsored trips for MPs to the US but also was engaged in a media development programme in Parliament. Most of these developments came into being without the knowledge of the then opposition leaders. The present Foreign Relations Minister, Dinesh Gunawardena, raised issue in the floor of the House.

The former Speaker Karu Jayasuriya also summoned the Colombo-based diplomatic community periodically to discuss national issues with little or no concurrence from the Foreign Ministry. There is more to come when a brand-new constitution is introduced. As revealed in these columns last week, an expert’s panel has been approved by the Cabinet. The members are President’s Counsel Romesh de Silva, President’s Counsel Manohara de Silva, President’s Counsel Gamini Marapana, President’s Counsel Sanjeeva Jayawardena, President’s Counsel Samantha Ratwatte, Professor Nazeema Kamardeen, Professor G.H. Peiris, Professor Wasantha Seneviratne and Dr A. Sarveshwaran.

The experts’ panel will be guided by Justice Minister Sabry. He is to periodically keep the Cabinet of Ministers briefed.

The Samagi Jana Balavegaya (SJB) is yet to flex its muscles over the proposed 20A. At present, its parliamentarians are more concerned about their own personal security. Two SJB stalwarts, General Secretary Ranjith Madduma Bandara and Chief Opposition Whip Lakshman Kiriella complained to Speaker Mahinda Yapa Abeywardena during a party leader’s meeting that their security had now been pruned. They have now been assigned only two Police officers as against four earlier. Internal Security State Minister Chamal Rajapaksa pointed out that Officers in Charge of Police Stations had complained about the lack of strength. They had said that they were finding it difficult to carry out important tasks due to lack of strength. No decision was taken on the issue.

Parliament will meet on September 8,9,10 and 11. One day has been allotted for a debate on reports of the Central Bank. The next two days will be for a debate on changes to the Excise Ordinance. On the last day, the House will take up a condolence vote on Ceylon Workers Congress leader and Minister Arumugam Thondaman.

The 20th Amendment is coming before Parliament at a time when President Gotabaya Rajapaksa’s popularity continues to remain at peak. It was bolstered by his order to crack down on the illegal drug mafia and the criminal underworld. He will no doubt be even more emboldened by the executive powers restored through 20A. The opposition is expressing fears that the move will lead to authoritarianism, the same charge that was levelled before the presidential election. Like he disproved his critics then, it behoves on President Gotabaya Rajapaksa to disprove them again by continuing to head a regime that is free of corruption, fair, and just. There is much bigger responsibility now than before.