Draft Twentieth Amendment

by Dr. Dayanath Jayasuriya P. C.

Most social and political scientists are in agreement that in respect of several sectors Sri Lanka made significant progress under the Donoughmore system of government. The first State Council of Ceylon opened on July 7, 1931; an event held 89 years ago with much pomp and pageantry. The committee system had specific mandates and members nursed their electorates to win confidence to be reelected largely without political affiliations. The first independent constitution, drafted with the assistance of Sir Ivor Jennings, who became a close associate of D. S. Senanayake, followed basically the Westminster parliamentary model of democratic government with dual chambers and other changes. The Queen retained limited powers and was represented through a Governor.

Party politics continued to exert greater influence with language, religion and minority rights gaining more currency. In the early 1970s, nationalist sentiments called for a ‘home-spun’ constitution. The first casualty was the appeals to the Privy Council. This was essentially a precursor to adopting a new constitution through an informal assembly and bypassing the entrenched provisions in the independent constitution. In 1972, the country became a full-fledged democratic Republic, known as Sri Lanka, severing all links with the British monarch. With a change of government in 1977, the process of drafting a new constitution began. The new Constitution has since been amended 19 times giving rise to its description as a ‘periodical’ in bookshops and libraries in the U. K.

The period from 1948 to 2020 has witnessed many changes and developments. Besides the well known youth insurrections and a 30-year war against an attempt to set up a separate state, several Prime Ministers and Presidents, together with their respective ministers and party members, have initiated movements and projects to develop the country. Resettlement schemes of D. S. Senananyke; prominence to Sinhala as the main language by S. W. R. D. Bandaranaike; the green revolution of Dudley Senanayake; the nationalization of schools and the popularization of the non-alignment movement by Mrs. Sirimavo Bandaranaike; liberalization of the economy by J. R. Jayewardene; housing projects for the homeless by Premadasa; institutional capacity-building by Mrs. Chandrika Bandaranaike Kumaratunga; and construction of highways and building of harbours, airport and a new Port City by Mahinda Rajapaksa are only a few examples that readily come to mind.

However, it cannot be gainsaid that all these were an unqualified success story; some led to or took place during a train of unpleasant events which still haunt the country such as the rights of minorities, the huge external debt etc. From the early 1980s, the ethnic war diverted attention from more pressing social issues and was a drain on the economic resources, not to mention the huge loss of life or disabilities of youth in their prime. The April 21 Easter Sunday attacks by militant Muslim groups have added a new dimension to the problems to be resolved in a multi-ethnic and multi-religious society. Highly qualified professionals migrated seeking greener pastures and the country lost the benefit of their services.

The country’s economic plight was neatly summarized by W. A. Wijeywardena, a former Deputy Governor of the Central Bank:

“Sri Lanka’s economy today is in a deep mess. Even after seven decades of independent rule, the country has not been able to push itself up to the level of a rich country. Over the entire post-independence period, the country had had a meagre economic growth of about 4.5% on average. That was pretty below the growth rate of 9% needed for raising the country to the status of a rich country within a few decades. Hence, all governments in the post-independence period are responsible for this malaise. Beginning from 2013, over the last seven-year period, the situation further deteriorated. Symptoms were manifested by falling growth rates, stagnant exports, mounting external debt, rising recourse to commercial borrowings, falling in government revenue, stubborn budget deficits, stagnant capital formation, high inflation though at mid-single digit level over the world inflation and pressure for exchange rate to depreciate…” (Daily FT 8 September 2020).

The 19th amendment was a hastily prepared piece of legislation which was not subjected to close scrutiny by politicians, lawyers or political scientists. Soon thereafter there was no love lost between the President and the Prime Minister who came from different political parties. A Supreme Court ruling effectively prevented the removal and replacement of the Prime Minister and the premature dissolution of the Parliament. The judgment placed great emphasis on the nebulous concept of ‘sovereignty of the people’ and some 15 President’s Counsel who appeared in the case paid lip service to the more important and salient concept of ‘separation of powers’.

In August 2020, President Gotabaya Rajapaksa’s party gained a landslide two-thirds majority with a mandate to amend or replace the 19th amendment and/or to introduce a new constitution. The ruling party has opted to introduce a new 20th amendment repealing some provisions in the 19th amendment but retaining certain provisions and appointed a committee of experts to draft a new constitution. A few members of the Buddhist clergy are unhappy that a non-Buddhist is heading the Committee but these fears are unfounded as there are other members and the committee’s mandate in only to submit a draft which would then be subject to public, parliamentary and judicial review before becoming law.

The paramount need to amend the 19th amendment to the Constitution apparently arises from the fact that two Presidents have found it difficult without full powers to achieve their intended policy goals. On two occasions a President and a Prime Minister from different political alliances found that what was to be a holy matrimony soon ended as an unholy deadlock. The appointment by President Sirisena of a non-national as the Governor of the Central Bank at the insistence of Prime Minister Ranil Wickremesinghe led to an unprecedented financial disaster tarnishing the reputation and integrity of the Central Bank. In at least two so-called independent commissions established under the 19th amendment to the Constitution. we saw certain members airing private views in public when they were expected to act discreetly.

Untrammeled presidential powers seem to be the golden key that anyone in power hopes will help to open the door to unleash the development process. The draft provides, inter alia, for the President exclusive powers to make high-level appointments of his choice. Parliament can be dissolved within a minimum of one year- a departure from the bizarre provision in the 18th amendment which provided for a four and a half year period. It was bizarre for the reason that if all members of Parliament resigned and no replacements were made, the President would still be obliged to complete the four and a half year period before calling for fresh elections! No piece of legislation is perfect but the 19th amendment leaves more to be desired than any previous amendment to the Constitution.

Already many criticisms have been leveled against certain draft proposals. For instance, much has been said about the proposal to grant dual citizens to enter Parliament. Even though it is speculated that this is intended to accommodate a related party who is currently debarred from being accommodated, there is no logical reason to exclude dual citizens from holding political office if the country were to benefit from their expertise and knowledge. A second chamber, the Senate, was envisioned under the Soulbury Constitution to give a place of importance to distinguished individuals who were reluctant to contest but could otherwise contribute to the nation’s decision-making process. Ideally, the 20th amendment should provide for dual citizen to hold not only political office but also office in public service and academia. We may hopefully be able to see more academics who are now overseas return to upgrade the knowledge and skills of students.

In the 1950’s and 1960’s, Sri Lanka was an exemplary developmental model studied by other countries such as Singapore and Malaysia. Today, the situation is just the opposite. Using current global indicators measuring corruption-free administration; ease of doing business; control over drugs of abuse, tobacco and alcohol; attracting foreign investments etc., Sri Lanka has fallen far behind most nations of the world. Successive governments and opposition members of Parliament and public servants must take much of the blame for inaction, short-sighted policies and running dysfunctional institutions.

Lord Acton, expressed the following opinion in a letter to Bishop Mandell Creighton in 1887:

“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”

The challenge for any new President now is to emerge as a great and good man, thus proving that Lord Acton was wrong as far as his statement is concerned. Dharma Asoka the Great was known to have been a benevolent dictator under whose rule much good had taken place in India during his time. He is said to have followed the ten precepts (Dasa Raja Dharma) outlined by Lord Buddha himself as the duty of a perfect ruler, namely

1. To be liberal and avoid selfishness

2. To maintain a high moral character

3. To be prepared to sacrifice one’s own pleasure for the well-being of the subjects

4. To be honest and maintain absolute integrity

5. To be kind and gentle

6. To lead a simple life for the subjects to emulate

7. To be free from hatred of any kind

8. To exercise non-violence

9. To practice patience

10. To respect public opinion to promote peace and harmony

In plural societies such as ours, it is important that the achievement of peace and harmony must gain the top most priority. It behoves all religious and national leaders to move away from their narrow comfort zones and adopt a holistic approach and do whatever is possible to make Sri Lanka as one modern united nation that proudly belongs to all of us after 72 years of independence.

(The writer was conferred a Ph.D. by the University of Colombo for his work on ’Mechanics of Constitutional Change: The Sri Lankan Style’. After a career as an international civil servant he returned to Sri Lanka and served as Chairman of the Securities and Exchange Commission and the Insurance Board and as a member of the Public Utilities Commission and the National Procurement Commission. In December 2005 in accordance with a general circular from the Office of the P.M. he relinquished all these positions.)