Photo courtesy of Sri Lanka Brief

The Rajapakse Administration, by Government gazette, published its proposed 20th Amendment to Sri Lanka’s Constitution and subsequently the Secretary General of Parliament announced that it would be taken up for its first reading in Parliament on September 22, opening up the narrow window of time for the widely anticipated legal challenges to the amendment in the Supreme Court.

The 20th Amendment in a nutshell

The 20th Amendment essentially seeks to establish an elected absolute ruler who can theoretically do no wrong and is therefore not to be held accountable for his or her governance or adequately and independently guided in his or her actions. The executive presidency so created will not only wield powers arrogated to itself prior to the 17th and 19th Amendments, but it will also make that office even less accountable, removing for instance independent auditing of the President’s Office and the advisory role of the Constitutional Council.

For the past 25 years or more, the general consensus in political and civil society has been that the 1978 Constitution had centralized power too much and created an executive presidency that over shadowed all other organs of the State and that this must be reformed. Every government elected since the Kumaratunga Administration in 1994 has pledged to reform and reduce the powers of the executive and make it more accountable – the 17th and 19th Amendments to the Constitution doing just that.

It is precisely because a consensus existed among political elites, and consequently the general public, that the powers of the executive presidency should be pruned and Sri Lanka’s executive arm of government should increase its accountability to both the judiciary and the legislature, that the 19th Amendment, introduced in early 2015 by a minority government that had only 43 seats in the 125 member House, was passed with near consensus with only a single vote against. Contrast that with the present situation where a government, which has a two-thirds majority in the House, is already running into internal dissent on its signature 20th Amendment. Interestingly there are over 25 members of the present parliament, as opposition members in 2015, who voted for the 19th Amendment, now having to be hurrah boys for its demise.

Internal SLPP opposition to the Amendment

The SLPP Administration has at least two very clear strands within it (factions would be too strong a word). The first strand is the old guard politicians, allied parties and traditional political operators, generally all managed by Prime Minister Mahinda Rajapaksa and party chief Basil Rajapaksa. The other, and currently dominant, strand of the Administration is the professional and retired military personnel around the president, organized through their various groups. The 20th Amendment is very much a creation of President Rajapaksa’s inner circle of professionals, strong on personal loyalty and weak on political sense. The 20th Amendment is classic over reach by the politically naïve professionals. The result has been significant disquiet and push back from various forces within the government itself.

The ultra-Sinhala nationalist wing of the ruling Alliance has a serious problem with enabling dual citizens to be parliamentarians or Cabinet Ministers since it potentially opens the door for various diaspora activists to engage in electoral politics. They also want the Sri Lankan State, which is seen as synonymous with the majority community they represent, to be more not less accountable. Accordingly, the elimination of both the independent Audit Commission and the Independent Procurement Commission has been met with stiff resistance. It has been a reflection of that resistance that led the Prime Minister to appoint a ruling alliance advisory committee to study the proposed amendment and report back. But as media reports over the weekend indicate, their recommendations for changes would not be incorporated into the proposal. Changes, if any, are to be moved during the committee stage debate in Parliament.

External opposition by judicial, administrative, civil and political forces

Besides the internal government concerns and the disquiet over the proposed 20th Amendment, the totally non-partisan Retired Judges Association (RJA) stated that they were “gravely perturbed” by the potential impact of the 20th Amendment on the constitutional separation of powers and particularly with regard to the selection and appointment of judges to the Court of Appeal and the Supreme Court. In a letter to the Justice Minister, the RJA states that an accountable and publicly transparent process of appointment of judges is integral to upholding the Rule of Law, engendering public confidence and dispensing justice. They claim, with considerable merit, that they “are concerned by the amendment of Article 41A of the Constitution, to replace the Constitutional Council having the power of issuing recommendations by a Parliamentary Council which can only make observations in regard to pending judicial appointments”. They further note that the Parliamentary Council lacks the important element of non-political membership and is seriously compromised by the President’s ability to remove nominees of the Prime Minister and Leader of the Opposition.

Similarly, government auditors also express their serious concerns over the removal of the Independent Audit Commission and the weakening of the powers and the removal of the autonomous nature of the office of Auditor General.

For Opposition Leader Sajith Premadasa and the more than 50 parliamentarians who make up the SJB parliamentary group and their political allies, the immediate introduction of the 20th Amendment creates both a challenge and an opportunity. The challenge is that it does not have the luxury of settling down before having to take on a strong government, which nonetheless has shown some cracks due to over reach. The opportunity is that the 20th Amendment and the opposition to it from various quarters, including from sections of the Sinhala nationalist political forces, presents a real opportunity to create a diverse though united force, based on established high political principles, against the 20th Amendment and its proponent Administration.

The Rajapaksa Administration, feeling vindicated at the Parliamentary elections and emboldened by its two-thirds majority in Parliament will not back down or compromise on the 20th Amendment. It will push through the 20th Amendment without compromise or consensus and will in all likelihood see a 20th Amendment in place. But in winning this battle, it may lose its ultimate war for a new constitution. The 20th Amendment will certainly not be the beginning of the end for the SLPP Administration but it may well be the end of the honeymoon period for it. Sri Lankans are happy to place blind faith in their leaders but it begins to come a little unstuck when the leaders try and take more than what is on offer.