Renewed focus on 20th Amendment | Daily News

Renewed focus on 20th Amendment

Arguments for and against the 20th Amendment are being heard before the Supreme Court
Arguments for and against the 20th Amendment are being heard before the Supreme Court

National interest is now focused on the 20th Amendment to the Constitution which is being canvassed before the Supreme Court. Some 39 petitions against it are being heard while seven intervenient petitions supporting it are also being entertained in the country’s apex court.

The petitions are being heard by a five-member bench of the Supreme Court comprising of Chief Justice Jayantha Jayasuriya and Supreme Court Justices Buwaneka Aluwihare, Sisira De Abrew, Priyantha Jayawardena and Vijith Malalgoda.

Among those who filed petitions against the proposed 20th Amendment are Samagi Jana Balavegaya (SJB) general secretary Ranjith Madduma Bandara, United National Party deputy leader Ruwan Wijewardene and National Elections Commission member Ratnajeevan Hoole.

Three Ministers, Prof. G. L. Peiris, Nimal Siripala de Silva and Gamini Lokuge and General Secretary of the ruling Sri Lanka Podujana Peramuna (SLPP), Sagara Kariyawasam have filed intervenient petitions supporting the proposed amendment.

Therefore, it appears that support and opposition to the proposed amendment has been clearly on party lines. It is interesting to note that Minister Nimal Siripala de Silva has filed an intervenient petition in support of the amendment.

Minister de Silva is the senior most minister in the SLFP which has, officially at least, appointed a ten-member committee to study the proposed amendment and convey its views to Prime Minister Mahinda Rajapaksa. It is expected that the SLFP will support the 20th Amendment.

When hearing of the petitions began on Tuesday Attorney General Dappula de Livera informed court that the government hopes to move amendments to the 20th Amendment during the committee stage of Parliament. However, the exact nature of these amendments was not elaborated upon.

19th Amendment

There has been much discussion in the public domain about the 20th Amendment which seeks to repeal many of the changes brought about by the 19th Amendment. Critics have argued that the flaws in the 19th Amendment could be rectified, retaining its salutary aspects.

Indeed, some aspects of the 19th Amendment have been retained. They are the two-term limit imposed on an individual holding the office of President and the five-year terms of office of both the President and Parliament, instead of these being six years.

Apart from these changes introduced in the 19th Amendment which have been retained, the 20th Amendment seeks to restore most of the executive power to the elected President, rather than let some of it be under the control of Parliament and the Prime Minister.

Under the proposed 20th Amendment, the President can appoint and remove the Prime Minister, has authority to decide on the number of Cabinet ministers as well as their portfolios and can also dissolve Parliament after a period of one year following a general election.

Under the 19th Amendment, the Prime Minister, once appointed, could be removed only by Parliament. The number of Cabinet portfolios were limited and the subjects were decided by the Prime Minister. The President could not dissolve Parliament for four and a half years.

There has been speculation that the amendment regarding the President’s ability to dissolve Parliament could be modified during the committee stage of Parliament and that the period after which the President could dissolve Parliament could be extended to two and a half years.

There have been two issues within the proposed 20th Amendment which are emerging as major areas for dispute between the government and the opposition. These are the issue of dual citizens running for high office and the role of the Constitutional Council and the independent commissions.

The 19th Amendment barred dual citizens from contesting for a seat in Parliament or for President. The proposed 20th Amendment allows dual citizens to do so. It will be recalled that parliamentarian Geetha Kumarasinghe was unseated from Parliament because she was a dual citizen.

Dual citizen issue

There has been some criticism from the government’s own ranks about the proposed change. Minister Vasudeva Nanayakkara spoke publicly about it and said he was encouraged by the petitions against this clause. In Cabinet he reportedly asked whether it was introduced to benefit Basil Rajapaksa.

Basil Rajapaksa, younger brother of both President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa is seen as the mastermind behind the creation of a new political party, the SLPP, following the unexpected defeat of then President Mahinda Rajapaksa in January 2015. He is a dual citizen.

President Gotabaya Rajapaksa was also a dual citizen, both siblings also holding citizenship of the United States. However, prior to contesting the presidential election, President Gotabaya Rajapaksa had to renounce his United States citizenship and the matter was the subject of a legal battle as well.

Critics argue that opening the Presidency and Parliament to dual citizens will pave the way for unnecessary foreign interference. They point out that Eelamist sympathisers who have obtained citizenship in other countries and are now dual citizens could make their way to Parliament.

One compromise is to retain the bar on dual citizens contesting for the Executive Presidency but allow dual citizens to run for Parliament. The government has noted that parliamentarians are already required to take an oath disavowing separatism which would limit Eelamists entering Parliament.

The other main contentious issue is the Constitutional Council and the independent commissions which have the authority to make appointments to high offices including the judiciary. Currently, these appointments are recommended by the President but confirmed by the Constitutional Council.

Under changes proposed in the 20th Amendment, the ten-member Constitutional Council which has three members from civil society will be replaced by a five-member Parliamentary Council comprising entirely of parliamentarians, where the government is likely to have a majority.

The role of this Parliamentary Council is also reversed: it can only submit observations to the President who is not bound by these observations. Therefore, the President has greater authority to decide on key appointments which the government argues will lead to greater efficiency.

A question that is being asked, both in government and opposition circles is why the 20th Amendment is being expedited when the government won a clear mandate at the August general election to enact a new Constitution and is keen to follow through with that pledge.

The government has already appointed a committee headed by senior lawyer President’s Counsel Romesh de Silva to draft the proposed new Constitution. However, there are variable estimates as to how long this task would take with timeframes ranging from six months to two years.

Minister G. L. Peiris revealed that this committee has already commenced work. He is optimistic that the draft of the new Constitution will be presented to Parliament within the next six months. The 20th Amendment is necessary to get rid of the ‘grave repercussions’ of the 19th Amendment, he said.

“We will not bring in the new Constitution in an arbitrary manner. All opinions will be considered as a Constitution will have to last for decades. The draft will be completed in six months. The Constitution making process will then continue uninterrupted,” Minister Peiris said.

New Constitution

Cabinet spokesman Minister Udaya Gammanpila was asked about the same issue at the weekly media briefing this week. Gammanpila’s response was that the proposed new Constitution could take a longer time period to be finalised and therefore a 20th Amendment was necessary in the interim.

“The new Constitution is expected in a minimum of two years. Anything can happen in two years. Besides, we have a mandate not only for the new Constitution but for the 20th Amendment as well. We need it enacted as early as possible,” Gammanpila said.

Clarifying the government’s stance that it will not be amending the 20th Amendment when it is presented to Parliament, Minister Gammanpila explained that modifications may be made if the Supreme Court determines that certain provisions require approval at a referendum.

“We can introduce necessary changes to the Amendment during the Committee Stage in Parliament. We don’t intend to include any provisions that require the approval at a referendum. It will be entirely a different scenario, if the Supreme Court rules that a referendum is necessary,” the Minister said.

Prime Minister Mahinda Rajapaksa has also been questioned by the media about his status, should the 20thAmendment be enacted. The Prime Minister, in characteristic style, laughed off speculation that his role in government would diminish or that he would retire from politics.

It is therefore clear that the government has set its sights firmly on enacting the 20th Amendment to the Constitution as soon as possible. This is because it believes the process of formulating a new Constitution could be a time-consuming process and is one that should not be attempted in a hurry.

When the UNP won a landslide victory in July 1977 under J. R. Jayewardene, the 1972 Republican Constitution was changed in September 1978, in just over one year. Jayewardene is believed to have commissioned the task of drawing up the Constitution, even before he won the election.

The new Constitution will require a longer period of gestation because its drafters would need to learn from the shortcomings of the 1978 Constitution that required 19 amendments in less than forty years. For now though, the focus is entirely on the proposed 20th Amendment and the Supreme Court.