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21st Amendment to the Constitution: Ad hoc abolition of Executive Presidency will lead to anarchy: Dr. Wijeyadasa Rajapakshe

29 May 2022

  • Cabinet and President keen to pass 21st Amendment
  • A timeline for President to step down not discussed in detail
  • Opposition Leader blamed for not stepping up at time of need
  • Risk of Basil Rajapaksa becoming president or PM if GR steps down before 21A
  • Measures will be introduced to improve judicial independence
  • 21A has provisions to combat corruption and politicisation
  • President needs to retain Defence portfolio
By Asiri Fernando The Parliament must move quickly to find a consensus on the proposed 21st Amendment (21A) to the Constitution and then chart a course towards a new constitution, newly-appointed Minister of Justice Dr. Wijeyadasa Rajapakshe told The Sunday Morning. According to the Justice Minister, the President has in principle agreed to step down. However, there hasn’t been a detailed discussion on the timeline for him to do so yet. The Justice Minister stated that the new Government would work with President Gotabaya Rajapaksa to move the country towards stability and ‘normalcy’ before embarking on forging a new constitution, which will be put to a referendum. Minister Rajapaksa stated that the Opposition Leader should have taken up the opportunity to form a government, but that his delay forced a few in Parliament to turn toward current Prime Minister Ranil Wickremesinghe. The Minister also noted that he opposed calls for the complete abolition of the Executive Presidency. In an interview with The Sunday Morning, the Minister of Justice said that the 21st Amendment which he had drafted had the support of the Cabinet and stressed that they would need to work towards convincing the Opposition to extend its support to gain the two-thirds majority needed to pass it. Following are excerpts of the interview:  A draft of the proposed 21A was tabled at the Cabinet meeting held on 23 May. Do you think the draft has broad support within the current Cabinet?  The Cabinet, including the President and the Prime Minister, was very keen to have this amendment passed as soon as possible. Cabinet members are currently studying it and we will this week (25) send copies of the draft to all party leaders who are represented in the Parliament. We expect to have discussions with them about the proposed amendment on Friday (27). Has the President agreed to a timeline for him to step down from his post? This is a key demand of protesters and Opposition parties. Even before the ‘Aragalaya’ started, I proposed to the Parliament to establish an interim government with all parties. There was a poor response for it, and later people of this country took to the roads with their demands. The country was in a situation of anarchy for several weeks. We believe in democracy, so we made every possible effort to form an interim government. We firmly believe that the legitimate right is vested in the Opposition Leader [Sajith Premadasa] to take over the Government. However, he refused to take over and form a government. We proposed that 41 independent members would give him the fullest support, but he refused. We suggested that we would form a government with the SJB plus 41 members and later this number of independent members increased to 53, but Premadasa refused again. We were shocked. Finally, we thought we would ask Ranil Wickremesinghe although he had only one seat. With one seat he can have no political agenda. He is an experienced politician. If the Opposition Leader doesn’t step up, somebody has to – the country must continue. Wickremesinghe took up the challenge. We had discussions with the President; we highlighted that the people wanted the then Government to be dissolved, for the then Prime Minister to either resign or be removed, and that the people wanted a government without Rajapaksa family members – not me [laughs]. The President agreed in principle. In fact, he complied with it.  We said that we needed the 21st Amendment passed quickly. He said we had his fullest support. At the last Cabinet meeting, we said we wanted to go for a new constitution; he said if Parliament could come out with a new constitution that had the people’s support, he would support it too. We did not discuss in detail about the timeline for him to step down. The first thing is getting the 21A passed, then we will work with him to restore normalcy. Meanwhile, we plan to establish a Parliamentary Select Committee to discuss a new constitution. One draft has already been done by an expert committee chaired by Romesh de Silva, PC. In addition, we had a Constitutional Assembly in Parliament during the previous Government – we have all those reports. I think this will take about six months. Then, we will consult stakeholders including the citizenry about a new draft constitution and move forward. President Gotabaya Rajapaksa has no interest in retaining the Executive powers vested in him. Otherwise, he wouldn’t have invited me, a person who criticised and fought against him, to take up the post of Minister of Justice. We have to think about the country first, not about our personal relationships, animosity, personal policies, or politics. The ruling SLPP pushed hard for dual citizens to hold public office; what has the response been from the SLPP to proposals calling to remove dual citizen access? So far, officially they have not communicated anything. However, the majority of the SLPP, to my understanding, are supportive of the 21st Amendment. There may be a small group surrounding Basil Rajapaksa who think otherwise, but as time goes by and they realise that he [Basil Rajapaksa] is no more a political figure in the country, I am confident that they too will support us. Secondly, if they don’t support the 21st Amendment, which will have wide support, it will affect how they survive in politics, so I think that they will be motivated to support it. The Opposition Leader has objected to the draft 21A bill you have presented in its current form. As such how will you get the Opposition’s support for it in Parliament? The Opposition has also put forward a draft bill that suggested the total abolition of the Executive Presidency. We cannot agree to that. Not only as a member of the Government, but as a parliamentarian and citizen too, I cannot agree to that.  It would completely distort the Constitution. There are many things attached to the Executive Presidency including the electoral system and the 13th Amendment. If you do it [total abolition of Executive Presidency] in a haphazard way this country will be in anarchy for years, so we can’t permit that to happen, no matter who brings it. Secondly, it is sensational to say ‘Gota go home,’ but let’s assume that the President resigns, then what is the method we have to follow? We have to pick one from the 225 in Parliament. What is the guarantee that Basil will not become the next president? Even if we are not with him [Basil Rajapaksa], you only need a simple majority to become the President. Also, if the majority is with SLPP and they pick someone else from amongst themselves, will that person be a better pick to hold the office of the president than Gotabaya Rajapaksa? What if that person is controlled by Basil Rajapaksa? So there are those risks to consider. The SJB has brought its own 21st Amendment. If the SJB and SLPP will not support the 21st Amendment draft you have proposed, how will you build unity and get the two-thirds needed in Parliament to push it through? We will discuss with the Opposition Leader; his responsibility and that of the Prime Minister are equal in a democratic system. Both have to think about how best to help the country. We will convince him. I think he will agree, even though he was fighting for several matters. We must move to gain what we can, when we can. We will extend our goodwill and I am sure he will understand the need. How will the introduction of the proposed independent commissions – the Audit Services Commission and the Procurement Commission – improve transparency and accountability and help reduce political influence and corruption? Large-scale corruption takes place in the procurement process. Therefore, when there is an independent Procurement Commission, everything will have to be discussed and filtered through it. Through our experience we know it will help to reduce corruption to a large extent. In addition to the Audit Service Commission, if there is corruption, it will be identified and exposed. We will certainly make these commissions more transparent than before; transparency is a key motive for us. What reforms will you propose to improve judicial independence, particularly on the appointment of judges? Will the Executive retain the current powers given in the 20th Amendment? Under the 20th Amendment, the Parliamentary Council for judicial appointments is a sham. It allowed political involvement. In the proposed 21A, like in the 19th Amendment, such appointments will be made based on the judge’s merit and in a transparent manner. Government officials like judges, the attorney general, the inspector general of Police, the governor of the Central Bank, and the secretary general of Parliament have to come from the president. For the commissions, it is the Council that will nominate names to the president. If the president doesn’t appoint those who are proposed, after the lapse of 14 days, it is deemed that they have been appointed. We had this problem with the 17th Amendment where the then President received the nominees but didn’t appoint them, so I have added a ‘deemed’ provision to the 21st Amendment to address that. Under the proposed 21A, will the President retain the powers to appoint secretaries to ministries and the post of minister of defence? Yes, the Ministry of Defence needs to remain with the president as he or she is the commander-in-chief. You can’t have two people – one holding the office of the Ministry of Defence and another being commander-in-chief. This was determined by the Supreme Court in 2003; that is how former President Chandrika Bandaranaike took over the Ministry of Defence from Tilak Marapana. Also, Articles 3 and 4 of the Constitution say that sovereignty is vested in the people, it is inalienable, and exercised when it comes to Executive powers by the president, including the defence of the people. If you want to change that, you’ll have to go for a referendum. On the appointment of secretaries to ministries, there are diverse opinions, we are trying to include that too. This was a matter brought up by the Bar Association of Sri Lanka (BASL) too. What measures have been taken to streamline and ensure transparency in the process by which presidential pardons are granted? Yes, this has been a concern. The BASL has also realised this. One fact we need to remember is that the credibility of a process will not only depend on the letters of the law, but it is also dependent on those who hold those responsibilities too. When I was holding this portfolio during the Yahapalana Government, I recommended two presidential pardons – one for wrongfully-jailed former Army Commander Sarath Fonseka and the other was for a young girl who had been sent to prison for defacing a wall at the historic Sigiriya Rock Fortress. Both did not cause controversy as the public understood the reasons. I think this matter can be addressed through a statute or a bill in Parliament. We can frame some guidelines on the criteria a president should follow in the event of wanting to grant a pardon. We can also include guidelines about where the opinion of the chief justice and the attorney general should be sought when granting a pardon. The BASL has stated that the 21st Amendment must include a provision amending Article 44(2) of the Constitution to remove the power of the President to retain ministries and assign any subjects or functions to himself; has such a provision been included in the 21A draft that was handed over to the Cabinet? I do not think that is a prudent proposal. For example, in the last couple of weeks, there were no ministers. When there are no ministers, all the power is vested in the president. In such an emergency situation, if a minister passes away or is overseas, during that period there must be someone to take on those responsibilities. The last few weeks are a good example. It doesn’t mean that President Gotabaya Rajapaksa should hold on to powers and responsibilities for a long time. For a short period of time, until some arrangements are made, the President will have to hold those responsibilities. If any changes to the proposed 21A are made at the party leaders’ meeting and you move to include some of them, how confident are you that the President will continue to support the amendment? Certainly. He will agree to what the Cabinet decides. He has no intention to obstruct this process. What is agreeable is for the rest of us, as parliamentarians, to seek out. Your predecessor, the former Minister of Justice, launched a series of judicial reforms. Will you as the new Minister of Justice follow through with those reforms, and if so, which areas will be prioritised? I have not had adequate time to study the reforms process, but of course we have to continue with the reforms. Over the last few decades there have been significant complaints against the law enforcement agencies in Sri Lanka. Many Sri Lankans have lost faith in them. What do you as the Minister of Justice plan to do to address this issue? We need to rebuild public trust in the agencies. I have already scheduled meetings with the Minister in charge of law enforcement, the Attorney General, and the IGP to discuss the matter. During the last couple of weeks, many pathetic things happened, that again brought the Police into question. We will discuss with the relevant stakeholders and create a process of reforms. We need to strictly maintain law and order in Sri Lanka.      


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