Before the latest quite severe covid-19 lockdown in Sri Lanka, Gotabhaya Rajapaksha’s government mustered its forces to pass the 20th Amendment to the country’s constitution. This replaces the 19th Amendment promulgated in 2015. The change was passed by a two-thirds majority in parliament, with the support of eight opposition members drawn mainly from two Muslim-based parties. If not for their support, the ruling party would not have had the necessary two-thirds of MPs.
It is said that Gotabhaya received two mandates from the people – one in last November’s presidential election and the second in the recently held general election – to do away with the 19th Amendment (‘19A’) and to enact the 20th Amendment. However, Gotabhaya and his party, the Sri Lanka People’s Party (SLPP), never stated that they would enact a new amendment conferring draconian powers to the president.
The basic feature of the constitution was supposed to be the separation of powers between the three main pillars of the state – i.e. the legislature, the executive, and the judiciary. Under the new amendment, the legislature and the judiciary have been subjugated to the executive and they can function only as long as the president agrees. Both parliament and the judiciary will be mere rubber stamps in the future.
With the draft 20th Amendment being passed, the president will be a law unto himself, and will not be subjected to any scrutiny anywhere. His actions cannot be questioned and he will sit above the law. Though only elected as president, Gotabhaya has been given unprecedented powers. His actions are not subject to parliamentary scrutiny or judicial review. Not even the general auditing process, which hitherto applied to presidential actions, will be applicable to Gotabhaya although he depends on the public purse for all his activities.
Under the amendment, the president can dissolve the parliament after the lapse of one year from the election. He can appoint any number of MPs as ministers, discarding the restrictions imposed by ‘19A’. He can hold any ministerial post. He can remove ministers, any time at will, including the prime minister (who is, at present, his brother and former president, Mahinda).
Judiciary
The most objectionable provisions of the new law are with regard to the appointment of higher officials, including the judiciary. Under the previous 19th Amendment, judges of the higher courts and certain higher officials, including the Attorney General, Auditor General, and Inspector General of Police, were only appointed by the president on the recommendation of the Constitutional Council. This was comprised of ten members – seven members of parliament and three public representatives. The new ‘20A’ proposes to do away with the Constitutional Council and gives the sole power of such appointments to the president. The judicial officers have to look to the president for their promotions. Only those who go along with the president would be selected for such positions.
A prominent feature of ‘19A’ was the establishment of several commissions for particular functions, such as the Election Commission, Human Rights Commission, the Bribery and Corruption Investigation Commission, and the Public Service Commission. The members of these commissions were appointed by the president on the recommendation of the Constitutional Council. The new ‘20A’ confers that power back to the president. The independence and autonomy of these commissions have been substantially curtailed; the holding of free and fair elections will be a distant dream.
Though the previous ‘19A’ curtailed the powers of the president, the real nature of the presidency was not altered. By ‘20A’ those powers are handed back and the president has been placed above the law. Out of the so-called three pillars of a democratic government, the legislature and the judiciary have been made subservient to the executive. The irony of the situation is that those who opposed the executive presidency when it was introduced in 1978, and campaigned for its abolition until the turn of this century, are the very people who are now craving for strengthening it.
Several other objectionable provisions contained in the original draft of the ‘20A’ were taken out due to the determination of the Supreme Court. One such important draft provision was the removal of the power of the Election Commission to take punitive action against public bodies or officials who do not abide by the directions of the Commission during an election period. The court ordered that the power of the commission be restored and the government had to yield to it. However, it will not be of much importance as the commission would be comprised of hand-picked lackeys of the President. There were some other revisions and amendments made. However, they do not alter the draconian nature of 20A, by an iota.
Dual citizens
The most hated provision contained in the amendment was the clause allowing dual citizens to stand in the elections and become members of the legislature. 19 A barred dual citizens from contesting elections and becoming MPs. Gotabhaya Rajapaksha had to renounce his US citizenship in order to contest the presidential election, last year. Restoring that right to dual citizens was fiercely opposed, not only by the opposition groups but also by coalition partners of the ruling party. Indeed, these minor parties in the coalition were the most vocal against this dual citizenship clause. However, President Gotabhaya summoned them at the 11th hour and these parties and groups succumbed under his pressure and, in the end, voted in favour of that clause without a murmur.
‘20A’ has become part of the highest law in the country now. It does not give any relief to the burning issues of the masses, nor does it provide any more rights to the people. It only takes away rights enjoyed under ‘19A’ and strengthens the position of the president vis-a-vis the legislature and the judiciary. So it directly affects the rights of the people when the people are supposed to be sovereign.
Sri Lanka is a crumbling democracy; people have been made mere spectators. The Rajapaksha oligarchy is established firmly on the basis of Sinhala Buddhist supremacist ideology. Even neo-liberal economic policies are being turned upside down sometimes to suit the needs of Rajapakshas. Bourgeois democracy, which is said to be the best form of governance by pro-capitalist commentators, is on its death bed. The infamous saying that “history has come to an end” may be making sense in terms of democracy dying a death for the first time in Sri Lanka’s post-colonial history.
