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22nd Amendment Bill: Is it the solution for political reforms?

14 Aug 2022

By Skandha Gunasekara Legal experts and political analysts last week opined that the proposed 22nd Amendment to the Constitution failed to rectify the shortcomings of the 19th Amendment (19A) and may result in a political crisis like that of 2018.  Veteran political analyst and academic Prof. Jayadeva Uyangoda said that the 22nd Amendment was not a solution to the present political crisis and that it was unclear if the Government was addressing the matter of political reform through it.   “They have ignored the present crisis, which requires a new constitution. You never know whether this is a first step in the direction of political reforms. The Government has to give a clear pledge that this is the first step and also detail what the next steps are. It has not done that.”  Amendment conundrum “I can’t see that it’s a solution to the present crisis but it seems to achieve two things. One, it seeks to curtail the powers of the president in the appointment of the prime minister, members of the cabinet, and other ministers. Secondly, it also seems to enhance the powers of the prime minister in the appointment of the cabinet and other ministers because the president will have to get the advice of the prime minister in making appointments to the cabinet and regarding other matters,” Prof. Uyangoda said.  He argued that the Bill had been drafted without considering the failures of the 19th Amendment and the resultant power struggle. “The framework of the 22nd Amendment has ignored that experience,” he said.  Prof. Uyangoda charged that it was clear the Sri Lanka Podujana Peramuna (SLPP) was attempting to exert power by reducing the powers of the current President and increasing those of the Prime Minister – a member of their coalition.   A farce Meanwhile, a member of the Aragalaya movement and rights activist, Attorney-at-Law Swasthika Arulingam pointed out that the 22nd Amendment still concentrated power with the president and that the system of constitutional councils under it was a farce.   “This is not a temporary solution at all. I believe that appointments of five members of the Constitutional Council (CC) are directly or indirectly influenced by the president, so the president essentially has a large control over the CC. The president also gets to nominate people to the CC to be appointed to the Judiciary and then CC has to approve or not, but ultimately it is the president who makes the initial recommendation.” She asserted that the Aragalaya had called for the complete abolition of the Executive Presidency and the 22nd Amendment had failed to do so, adding that accountability of the presidency had not increased. “In any case the 22nd Amendment does not get rid of the Executive Presidency and it completely falls short of what the protesters have been demanding, which is to completely abolish the Executive Presidential system. The problem with the system is, you have this one person standing outside the three structures of governance – Parliament, the Judiciary, and Government – without any being held accountable by court,” Arulingam said, adding that a direct reading of the Constitution did not require a referendum to repeal the provisions introducing the Executive Presidential system.  She charged that the mass protest on 9 July must be considered a referendum in itself demanding the abolition of the Executive Presidency, noting that there was a clear lack of political will to abolish it.  “There was a democratic uprising by the people on 9 July where people came in hundreds of thousands and said ‘go home Gota’. They also said ‘go home Ranil’. So how should constitutional lawyers and people who are thinking of the Constitution interpret this? It should be interpreted that the people do not want an Executive President. I would give legal sanctions to this uprising on 9 July and I would see it as a referendum and produce an amendment to abolish the Executive Presidency in Parliament,” Arulingam opined.  More cons than pros According to Attorney-at-Law Luwie Ganeshathasan, the proposed 22nd Amendment has more cons than pros. He pointed out that the process of forming the CC was barely different to the existing Parliamentary Council and would favour the government of the day.  “The composition of the CC is seriously flawed and will lead to a situation where the party in government will have control over the CC, making it similar to the Parliamentary Council. The proposed composition favours the government as the government will have direct control over four of the seven members of Parliament and the three non-parliamentarians have to be appointed based on the agreement of a majority of members of Parliament, which gives the government control in appointing these members. Thus, the government is able to control or influence seven of the 10 members.  “The idea of the CC was to have the PM and leader of the opposition compromise on the appointments so neither had direct control over any of the members. This new composition undermines this idea and undermines the efficacy of the Constitutional Council,” he stressed.  He then pointed out that the current President still retained the Ministry of Defence and was able to allocate other subjects to himself with the advice of the Prime Minister, while he was also able to appoint all secretaries to ministries.  Ganeshathasan also said that the presidency retained unwarranted power over Parliament. “The president has control over Parliament because he can prorogue Parliament at any time and he can also dissolve Parliament after two-and-a-half years.” Speaking on the positives, Ganeshathasan pointed to the provisions disallowing the president from removing the prime minister as well as clauses requiring the prime minister’s advice when appointing/removing ministers.  “The president cannot remove the PM at his discretion and the president, when appointing and removing ministers, appointing deputy ministers, and appointing and removing non-cabinet ministers will have to act on the advice of the PM.” He asserted that the 22nd Amendment had failed to live up to even the 19th Amendment and would see a cycle repeat itself when it came to politics and governance.  Justice Minister decries criticism Meanwhile, Justice Minister Dr. Wijeyadasa Rajapakshe charged that all critics of the 22nd Amendment did not understand the Constitution, adding that the CC would ensure the powers of the Executive were devolved to Parliament.  “The CC power sees the power being reduced from the Executive President. It is the distinctive parties that decide the nominees. For example, the government party, the main opposition, and the smaller parties will have an opportunity to decide their representative. Earlier it was the PM and opposition leader who decided; here we have given that right to the respective political parties. We have not diluted the 19th Amendment here,” he asserted. With regard to the president’s power to appoint ministry secretaries, Minister Rajapakshe said that it was the only way practically possible: “There was no restriction on the president appointing secretaries to ministries under the 19th Amendment. Here we discussed with all the party leaders and it was decided that it was not practically possible to enable the president to appoint ministry secretaries on the advice of the subject minister.”  He asserted that he would not remove clauses ensuring the current President retained the Ministry of Defence and that other subjects could only be held by a president for an interim period until a cabinet was appointed.  “I will not change it so that the president cannot hold the post of minister of defence. I will not do that. It has to be that. Under no circumstances will I deviate from that as it is the law. You cannot do it under the Constitution. The president can hold ministries in the interim period until a cabinet is appointed. After that the president can hold only the Defence portfolio. We drafted this version with the approval of all the political parties.”  


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