President’s Counsel and Sri Lanka Podujana Peramuna (SLPP) Government Parliamentarian Dr. Wijeyadasa Rajapakshe last week proposed a 21st Amendment to the Constitution in the form of a private member Bill.
Through it, he is advocating for the people’s sovereignty in the form of their Executive power, which is vested upon the Head of the Executive – the President who is elected by the people – to be transferred to the Legislature, to be exercised by the Parliament, the latter body which is also elected by the people through the exercise of the franchise at a General Election.
Most notably, he has thereby proposed the election of the President, not by the people, but by the people’s representatives (in this case, Members of Parliament) by majority vote, akin to the procedure followed in the election and appointment of the Speaker of the House. Furthermore, Dr. Rajapakshe’s first choice to exercise the powers and perform the duties and functions of the President’s office in the event the latter is not able to is not the Prime Minister but the Speaker.
If the President’s office gets vacated prior to the expiry of the term, a new President will be elected from the House, for, not just the remainder of the term but five years in total.
However, the Supreme Court (SC), according to Dr. Rajapakshe, should no longer have the power to hear, determine, and pronounce orders on any legal proceeding relating to the election of the President.
With regard to the impeachment clause, the proposal has removed the requirement for the resolution for impeachment to be signed by two thirds of the entire Parliament prior to its submission to the Speaker (one third will suffice per the Amendment), and has also done away with both the Speaker’s discretion to be “satisfied” that such allegation or allegations warrant a SC inquiry and also the need for a SC inquiry report. According to the Amendment, the President can be impeached with a two-thirds vote of the entire House.
Dr. Rajapakshe has clearly not taken into account the fact that if the term of the House too is to expire on or around the time of having to elect and appoint a new President, then the Parliament too, unless it has been reconstituted by the people at a Parliamentary Poll, has no right to adjudicate on the said matter, which should, however flawed the social contract is, have the stamp of the people’s will. With regard to the people’s will, the people’s view of the Parliament, if Sri Lanka’s recent electoral history is anything to go by, is likely to have undergone some substantial change, if not completely turned, by the end of the tenure of the Legislature. Therefore, for any semblance of democracy to prevail, it is a newly elected and reconfigured Parliament that should then decide on the same, if one is inclined to view the proposal of the President being elected by the House favourably.
The intended President will also no longer be the Head of the Government, and thereby the Cabinet of Ministers, and instead, it will be the Prime Minister who helms such.
In the exercise of the power to make the Statement of Government Policy, ensure the creation of proper conditions for the conduct of free and fair elections, appoint diplomats, keep the public seal of the Republic and execute such pertinent acts (per the law, and including the appointment of the Prime Minister, cabinet ministers, and judges of the superior courts, and to grant and dispose lands and immovable property belonging to the Republic), declare war and peace, and do what is lawfully required in terms of international law, custom and usage, the President has to act upon the advice of the Premier. In the grant of a pardon too, the President has to act on the advice of the Prime Minister. Moreover, it is on the advice of the Prime Minister that the President can decide the number of ministerial (cabinet and non-cabinet) portfolios, and assign subjects and functions, and change such, and the same applies to ministry secretaries, the Public Service Commission, the Delimitation Commission (including concerning names, boundaries, and members of electoral districts) and the Election Commission, the Judicial Service Commission, and the National Police Commission, the commanders of the Tri Forces, the Attorney General, and the Inspector General of Police (the Parliamentary Council is still involved concerning the latter two positions), the Secretary General of the Parliament, the judges of the apex courts, the Auditor General, and provincial governors. The same applies to the prorogation and dissolution of the Parliament, the submission of Bills and matters deemed to be of national importance to a public referendum, the exercise of the constitutional jurisdiction in respect of Bills and the consultative jurisdiction, the establishment of provincial councils, and public security.
In his “erudition and sagacity”, Dr. Rajapakshe has however kept the presidential immunity from suit intact.
In a welcome move, Dr. Rajapakshe has sought to not allow the President to assign subjects and functions to himself and has also vetoed dual citizens from being permitted to contest for the Parliament.
Dr. Rajapakshe has also blocked the formation of a National Government.
“For the avoidance of doubt, the powers, functions, and duties vested in the President by the Constitution, statutes, rules, regulations, or otherwise for the purpose of exercising Executive powers, functions, and duties of the President, shall be exercised by him/her on the advice of the Prime Minister,” Dr. Rajapakshe concluded.
If certain powers that are currently held and exercised by President Gotabaya Rajapaksa are vested with the Parliament, who would be wielding the same? It would, without doubt, basically be the same group of SLPP-led Government MPs who have (out of fear of reprisal or due to monetary gain, etc.) raised their hands and voiced their ayes in assent to virtually every Executive diktat and fiat that have not only been bereft of any common sense but also run roughshod over any semblance of parliamentary democracy, and any democracy, period.
Moreover, the problems of Sri Lanka, despite being a country that has been battered for decades by the countless excesses and blunders of Executive Presidents, have rarely been about a lone bad egg, i.e. the Executive President. It has, however, everything to do with the corrupt and rotten culture within the entire system including the Executive, the Cabinet, and the Parliament.
Hence, how can the nation, if it possesses any capacity for clarity of thought, expect any different values, let alone leadership or progressiveness to be shown from such a parliamentary and governmental cabal? Therefore, in the unlikely event that the said Amendment is implemented, transparency would not be its fruit, and any salient and positive changes envisioned by this Amendment would achieve only so much. Thus, the curtailing of the powers of the President and transferring such to an empowered Cabinet that gets to do whatever it wants with the President somewhat out of the picture, rather than what is necessary and in the best interests of the country, will be its lasting legacy.
The Amendment, in the final verdict, constitutes but the illusion of democracy, and not the path towards curing pressing political, economic, and social maladies.Wijeyadasa’s 21st Amendment and the illusion of democracy
28 Mar 2022
Wijeyadasa’s 21st Amendment and the illusion of democracy
28 Mar 2022
President’s Counsel and Sri Lanka Podujana Peramuna (SLPP) Government Parliamentarian Dr. Wijeyadasa Rajapakshe last week proposed a 21st Amendment to the Constitution in the form of a private member Bill.
Through it, he is advocating for the people’s sovereignty in the form of their Executive power, which is vested upon the Head of the Executive – the President who is elected by the people – to be transferred to the Legislature, to be exercised by the Parliament, the latter body which is also elected by the people through the exercise of the franchise at a General Election.
Most notably, he has thereby proposed the election of the President, not by the people, but by the people’s representatives (in this case, Members of Parliament) by majority vote, akin to the procedure followed in the election and appointment of the Speaker of the House. Furthermore, Dr. Rajapakshe’s first choice to exercise the powers and perform the duties and functions of the President’s office in the event the latter is not able to is not the Prime Minister but the Speaker.
If the President’s office gets vacated prior to the expiry of the term, a new President will be elected from the House, for, not just the remainder of the term but five years in total.
However, the Supreme Court (SC), according to Dr. Rajapakshe, should no longer have the power to hear, determine, and pronounce orders on any legal proceeding relating to the election of the President.
With regard to the impeachment clause, the proposal has removed the requirement for the resolution for impeachment to be signed by two thirds of the entire Parliament prior to its submission to the Speaker (one third will suffice per the Amendment), and has also done away with both the Speaker’s discretion to be “satisfied” that such allegation or allegations warrant a SC inquiry and also the need for a SC inquiry report. According to the Amendment, the President can be impeached with a two-thirds vote of the entire House.
Dr. Rajapakshe has clearly not taken into account the fact that if the term of the House too is to expire on or around the time of having to elect and appoint a new President, then the Parliament too, unless it has been reconstituted by the people at a Parliamentary Poll, has no right to adjudicate on the said matter, which should, however flawed the social contract is, have the stamp of the people’s will. With regard to the people’s will, the people’s view of the Parliament, if Sri Lanka’s recent electoral history is anything to go by, is likely to have undergone some substantial change, if not completely turned, by the end of the tenure of the Legislature. Therefore, for any semblance of democracy to prevail, it is a newly elected and reconfigured Parliament that should then decide on the same, if one is inclined to view the proposal of the President being elected by the House favourably.
The intended President will also no longer be the Head of the Government, and thereby the Cabinet of Ministers, and instead, it will be the Prime Minister who helms such.
In the exercise of the power to make the Statement of Government Policy, ensure the creation of proper conditions for the conduct of free and fair elections, appoint diplomats, keep the public seal of the Republic and execute such pertinent acts (per the law, and including the appointment of the Prime Minister, cabinet ministers, and judges of the superior courts, and to grant and dispose lands and immovable property belonging to the Republic), declare war and peace, and do what is lawfully required in terms of international law, custom and usage, the President has to act upon the advice of the Premier. In the grant of a pardon too, the President has to act on the advice of the Prime Minister. Moreover, it is on the advice of the Prime Minister that the President can decide the number of ministerial (cabinet and non-cabinet) portfolios, and assign subjects and functions, and change such, and the same applies to ministry secretaries, the Public Service Commission, the Delimitation Commission (including concerning names, boundaries, and members of electoral districts) and the Election Commission, the Judicial Service Commission, and the National Police Commission, the commanders of the Tri Forces, the Attorney General, and the Inspector General of Police (the Parliamentary Council is still involved concerning the latter two positions), the Secretary General of the Parliament, the judges of the apex courts, the Auditor General, and provincial governors. The same applies to the prorogation and dissolution of the Parliament, the submission of Bills and matters deemed to be of national importance to a public referendum, the exercise of the constitutional jurisdiction in respect of Bills and the consultative jurisdiction, the establishment of provincial councils, and public security.
In his “erudition and sagacity”, Dr. Rajapakshe has however kept the presidential immunity from suit intact.
In a welcome move, Dr. Rajapakshe has sought to not allow the President to assign subjects and functions to himself and has also vetoed dual citizens from being permitted to contest for the Parliament.
Dr. Rajapakshe has also blocked the formation of a National Government.
“For the avoidance of doubt, the powers, functions, and duties vested in the President by the Constitution, statutes, rules, regulations, or otherwise for the purpose of exercising Executive powers, functions, and duties of the President, shall be exercised by him/her on the advice of the Prime Minister,” Dr. Rajapakshe concluded.
If certain powers that are currently held and exercised by President Gotabaya Rajapaksa are vested with the Parliament, who would be wielding the same? It would, without doubt, basically be the same group of SLPP-led Government MPs who have (out of fear of reprisal or due to monetary gain, etc.) raised their hands and voiced their ayes in assent to virtually every Executive diktat and fiat that have not only been bereft of any common sense but also run roughshod over any semblance of parliamentary democracy, and any democracy, period.
Moreover, the problems of Sri Lanka, despite being a country that has been battered for decades by the countless excesses and blunders of Executive Presidents, have rarely been about a lone bad egg, i.e. the Executive President. It has, however, everything to do with the corrupt and rotten culture within the entire system including the Executive, the Cabinet, and the Parliament.
Hence, how can the nation, if it possesses any capacity for clarity of thought, expect any different values, let alone leadership or progressiveness to be shown from such a parliamentary and governmental cabal? Therefore, in the unlikely event that the said Amendment is implemented, transparency would not be its fruit, and any salient and positive changes envisioned by this Amendment would achieve only so much. Thus, the curtailing of the powers of the President and transferring such to an empowered Cabinet that gets to do whatever it wants with the President somewhat out of the picture, rather than what is necessary and in the best interests of the country, will be its lasting legacy.
The Amendment, in the final verdict, constitutes but the illusion of democracy, and not the path towards curing pressing political, economic, and social maladies.Kapruka
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Discover Kapruka, the leading online shopping platform in Sri Lanka, where you can conveniently send Gifts and Flowers to your loved ones for any event. Explore a wide range of popular Shopping Categories on Kapruka, including Toys, Groceries, Electronics, Birthday Cakes, Fruits, Chocolates, Automobile, Mother and Baby Products, Clothing, and Fashion. Additionally, Kapruka offers unique online services like Money Remittance, Astrology, Medicine Delivery, and access to over 700 Top Brands. Also If you’re interested in selling with Kapruka, Partner Central by Kapruka is the best solution to start with. Moreover, through Kapruka Global Shop, you can also enjoy the convenience of purchasing products from renowned platforms like Amazon and eBay and have them delivered to Sri Lanka.Send love straight to their heart this Valentine's with our thoughtful gifts!