With the Sri Lankan government presenting in Parliament the draft of the proposed 20th amendment to the constitution (or 20A as it is called) on September 22, another step toward the constitutional dismantling of democracy in the country has been taken.
The proposed 20A will lead “to a system of autocratic government” in Sri Lanka, writes noted Sri Lankan political scientist Jayadeva Uyangoda. It would bring to “an effective end” its “parliamentary democracy and liberal democratic traditions and institutions,” he has argued.
Sri Lanka’s descent into autocratic rule is all the more disturbing, even tragic, as the island-nation is Asia’s oldest democracy, with socio-economic indicators that are far better than other South Asian countries.
The 20A envisages a concentration of power in the executive presidency. It will bestow overwhelming and unfettered powers in the presidency, while significantly reducing the powers and role of the prime minister and Parliament. It will give the president the power to sack the prime minister and other ministers at his discretion and to dissolve Parliament just a year after its election. It will also provide the president with full immunity against prosecution.
The proposed amendment paves the way for the politicization of institutions and commissions. Appointments of top judges, the police chief, and members of the election, public service, bribery and human rights commissions – which are currently the responsibility of the constitutional council, which includes civil society members as well – would, after 20A is enacted, be left to the discretion of the president. The amendment replaces the constitutional council with a parliamentary council, whose “observations” the president could seek to in making these key appointments – but with no “approval” required, even such cursory consultation is not a given.
Stacking independent commissions with loyalists has serious implications: They “will cease to be independent,” M.A. Sumanthiran, Supreme Court lawyer and Tamil National Alliance parliamentarian, has said. The appointment of loyalists to the election commission, for instance, would severely compromise the fairness of future elections.
The draft 20A bill was published in the government gazette on September 2, but it ran into a bit of trouble when some parliamentarians of the ruling Sri Lanka Podujana Party (SLPP) unexpectedly raised objections to some provisions. Prime Minister Mahinda Rajapaksa, brother of the current president and a past president himself, was forced to appoint a committee to study the draft’s text. But no changes were made and the draft in its original form has now been tabled before Parliament.
20A attempts to take Sri Lanka back to the executive presidency that was put in place by the Constitution of 1978. It was vested with enormous powers and regarded as among the most powerful in the world.
An executive presidency is by its very nature undemocratic and in Sri Lanka it was more so as checks on the exercise of presidential power were diluted over the years. This prompted calls for abolishing the executive presidency and reverting to a parliamentary style of government. However, this was easier said than done.
Although most political parties promised to abolish the executive presidency during election campaigns, once in power, they did little to fulfil that promise. Still, there have been exceptions. In 2001, the 17th amendment diluted presidential powers somewhat; it required presidential appointments to independent commissions to be approved by a constitutional council.
Then in 2010, then-President Mahinda Rajapaksa got the 18th amendment (18A) enacted. It replaced the constitutional council with a parliamentary council, paving the way for politicization of key institutions. It also extended the presidential term to six years and did away with the two-term restriction imposed on a president.
Between 2010 and 2015, Sri Lanka witnessed nepotism and corruption of unprecedented proportions. Members of the Rajapaksa family were appointed as ministers as well as heads of corporations and departments. In addition to Parliament being subservient, the media was silenced and the judiciary rendered irrelevant. The balance of power between the executive, legislature, and judiciary, which was already lopsided in Sri Lanka, was all but destroyed. Sri Lanka under Mahinda was well on the road to authoritarian rule.
As in previous elections, in the 2015 presidential election too abolition of the executive presidency was the opposition’s main campaign plank. Only this time, the coalition that came to power after Mahinda was defeated took a few steps to reform the presidency. President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe enacted the 19th amendment, which requires the president to consult the prime minister on ministerial appointments, brought back a constitutional council, makes the president liable to prosecution for official actions that violate fundamental rights, and also restricts presidential terms to two five-year terms.
19A only chipped at some presidential powers. Still, it was widely regarded as “the most democratic and progressive” amendment made to the 1978 Constitution.
Now, a proposed 20A not only replaces 19A but also brings back much of what 18A put in place. The baby steps that Sri Lanka took in 2015 toward restoring democracy will be reversed if 20A is enacted.
Doing away with 19A has been a key item on the agenda of the Rajapaksa family and the SLPP, which it founded and dominates. The Rajapaksas are of the view that 19A was aimed at keeping Mahinda and his brothers out of power.
Indeed, the two-term restriction that was brought in by 19A was aimed at preventing Mahinda from contesting presidential elections again. As for the provision that banned holders of dual citizenship from contesting elections, it seemed aimed at keeping Mahinda’s younger brothers, Gotabaya and Basil, from entering the election arena. While Gotabaya had to renounce his U.S. citizenship to contest the 2019 presidential election, which he won, Basil remains a citizen of both Sri Lanka and the United States.
Over the past five years and especially after Gotabaya became president last year, the Rajapaksas’ calls for repeal of 19A have grown louder. They have blamed 19A for the weak leadership, paralysis of governance, and political instability that defined the Sirisena-Wickremesinghe government.
19A’s repeal was the SLPP’s main campaign plank in the run-up to the August 5 general election. The Rajapaksas pitched it as necessary for stability and economic development. That struck a chord with voters; fed up with the instability of the preceding five years, the electorate gave the SLPP a massive mandate.
Together with its allies, the SLPP now holds 150 seats in the 225-seat Parliament, and thus it has the two-thirds majority needed for constitutional amendment.
Still, there is scope for Sri Lanka to dilute 20A. With the draft amendment tabled in Parliament, politicians, political parties, and civil society members can go to court against its provisions. But they will have just a week to file court cases.
The main opposition party, the Samagi Jana Balawegaya, has filed a special petition in the Supreme Court against the 20A draft, describing it as illegal. It has called for the draft to be approved in a nation-wide referendum.
Discussion in Parliament could push for change in the provisions as well. The question is whether ruling party parliamentarians will wake up to the fact that by backing 20A they are undermining their own relevance in Sri Lanka’s political system. Should the truly democratic-minded among the SLPP parliamentarians withhold their support for 20A’s enactment, Sri Lanka’s democracy could get a lease of life.
However, this scenario is unlikely given the Rajapaksa clan’s iron grip over the SLPP’s members of parliament. Money, ministerial posts, and intimidation will keep them in line.
Sri Lankan democracy is the biggest loser should 20A be enacted. But Mahinda, a two time president who is currently serving his third term as prime minister, will lose too. His powers will be curtailed further even as younger brother Gotabaya turns into an omnipotent president. And Mahinda will still be unable to contest for the presidency again, given the two-term limit 20A will impose on presidents.
Mahinda’s fate following enactment of 20A could change the dynamic in the relationship with Gotabaya.