Dismantling brakes of a juggernaut

Saturday 5th September, 2020

The 20th Amendment (20A) bill is now in the public domain. The Attorney General is of the view that it requires only a two-thirds majority in Parliament for enactment. The government has 150 MPs on its side, and the passage of 20A is only a matter of time. Reflected in this constitutional amendment is the strategic thinking of the present dispensation.

It was thought, before last month’s general election, that 20A would be a slightly amended version of 19A as there was a need to help the President wriggle out of the constitutional straitjacket he found himself in. But 19A has been eviscerated. Only the five-year presidential term and the two-term limit seem to have been retained.

The general consensus is that 19A contains some salutary features, which must be retained although it was intended to keep the Rajapaksa family at bay, strip President Maithripala Sirisena of some executive powers and vest them in Prime Minister Ranil Wickremesinghe. The number of terms a President could serve was limited to two to prevent former President Mahinda Rajapaksa from contesting a presidential election again. Dual citizens were banned from entering Parliament or running for President because the yahapalana leaders wanted to prevent Gotabaya Rajapaksa and Basil Rajapaksa from seeking political office. Namal Rajapaksa was their obvious target when the minimum age limit for contesting a presidential election was raised to 35.

Wickremesinghe and Sirisena did everything in their power to ruin the political future of the Rajapaksas, but their plan went pear-shaped, and the boot is now on the other foot. Wickremesinghe is in the political wilderness; Sirisena, who left the SLFP as a powerful minister of the Rajapaksa government to contest the presidential election successfully, in 2015, having failed to realise his prime ministerial dream, is now playing second fiddle to the Rajapaksas, as an ordinary MP.

Dual citizens will be able to contest elections, and the minimum age for presidential candidates will be 30 if 20A is enacted. The path has been cleared for the Rajapaksa family.

The Constitutional Council (CC) is to be replaced with a Parliamentary Council (PC) under 20A. True, the CC functioned as a rubber stamp for the yahapalana government and was responsible for some controversial appointments which should not have been made. But the incumbent government could have changed the CC to make it more effective. What 20A proposes to set up is another rubber stamp council; the President will have the power to make all key appointments to the Election Commission, the judiciary, etc. Fear is being expressed in some quarters that the Auditor General’s Department will end up being an appendage of the government.

The government will be able to appoint any number of ministers if 20A is enacted, and this will help lure Opposition MPs into joining its ranks. A jumbo Cabinet will serve the purpose of only self-seeking politicians craving power and positions. Ideally, the Cabinet should not have more than 15 members. The number of ministers must not exceed 30 under any circumstances.

Worryingly, legal experts have pointed out that there is no provision in 20A for fundamental rights (FR) cases to be filed against the omissions and commissions on the part of the President. At present, FR cases can be filed against the Attorney General over presidential actions, but if 20A becomes law in its present form, people who feel that their fundamental rights have been violated by the President will not be able to invoke the jurisdiction of the Supreme Court. Instead, they will have to settle for going to the Appeal Court. The constitutional provision for FR cases anent presidential actions should be retained.

Overall, President Rajapaksa has done well despite 19A, which is annoyingly restrictive in some respects, and earned praise even from his critics. He certainly needs some more constitutional leeway to be able to live up to the expectations of the people who elected him and deserves the Defence portfolio among other things, as we have argued in previous comments. But 20A seeks to vest in the presidency excessive powers, and it in its present form is likely to cast him in an unfavourable light.

Framing a Constitution or amending it is a solemn task which requires sincerity and foresight, which the drafters of 19A sadly lacked; they played politics with it at the behest of their political masters. The architects of 20A have failed to be different. The yahapalana government went to one extreme, and the SLPP administration is set to go to the other. We are afraid that 20A will have a corrosive effect on the brake system of the SLPP juggernaut, causing it to go careening down the hill.

One can only hope that the government will heed concerns being expressed about 20A and consider watering it down instead of seeking a reversion to the status quo ante.