It was generally agreed, even by the very architects of the 19th Amendment, that it contained many shortcomings and ambiguities. Even though only one MP – present State Minister Dr. Sarath Weerasekara opposed it at that time, it soon became obvious to everyone that the 19th Amendment could lead to chaos in respect of governance, despite a number of positive features. And it did, before long.
This was of course exacerbated by the rivalry between the then President and the Prime Minister, who tended to pull in different directions. The shortcomings of the 19th Amendment became apparent when the President could not dissolve Parliament even when it became clear that the then Government had lost its mandate to govern following the Local Government Elections of 2018. This led to the tumultuous political events of October 2018, though the Courts eventually had to apply the laws that prevailed at the time. Even when Gotabaya Rajapaksa won the Presidential Elections in 2019 thus completely nullifying the earlier administration’s mandate, he had to wait several more months to dissolve Parliament due to the mandatory four-and-a-half-year rule imposed by the 19th Amendment.
Moreover, the 19th Amendment had taken away the Presidential powers to appoint suitable persons to high posts, which has led to utter chaos in several instances. When the serving IGP was taken into custody in connection with intelligence failures over the 2019 Easter attacks, there was no provision for the President or Parliament to appoint the next in line or another suitable person to that post. Instead, only an Acting IGP could be appointed. It also became clear that some members of the Independent Commissions were making statements that could be interpreted as being inimical to the country’s interests.
These situations led to calls to re-appraise, amend or abolish the 19th Amendment. This was in fact a campaign pledge of President Gotabaya Rajapaksa as well as the Sri Lanka Podujana Peramuna (SLPP) led by Prime Minister Mahinda Rajapaksa. Since the voters have given a massive mandate to the Government in this regard, the Government has lost no time in presenting to the people a draft of the proposed new 20th Amendment, which will replace the 19th Amendment. It is in the public domain for everyone to peruse and there will necessarily be a debate in society about its pros and cons, which is how it should be in a vibrant democracy like ours. A number of key provisions in the 19th Amendment to the Constitution has been repealed through the proposed new Amendment, though some have been retained and even strengthened.
The 20th Amendment to the Constitution has proposed a Parliamentary Council comprising the Prime Minister, Speaker, Leader of the Opposition and a nominee from the Speaker and Leader of the Opposition, replacing the present Constitutional Council. These nominees should also be sitting MPs. No non-MPs can represent the Parliamentary Council, unlike in the previous Constitutional Council, which had so-called Civil Society representatives.
Under the 20th Amendment, the President would be empowered to appoint members of Independent Commissions, Superior Court Judges, Attorney General, Auditor General, Parliamentary Commissioner for Administration (Ombudsman) and Secretary-General of Parliament after seeking observations from the Parliamentary Council. These appointments were earlier made by the Constitutional Council. This is a step in the right direction, because a President needs to take decisive action at the right time.
In a significant departure from the 19th Amendment, the President would be allowed to dissolve Parliament in a year after it first convenes and he or she would also be vested with the power to remove the Prime Minister. This too is a correct step, as circumstances can arise wherein Parliament may have lost its mandate or other circumstances compel a President to seek a fresh mandate for a Government. In the case of the Prime Minister, a situation may arise where he or she can no longer command the confidence of the President and Ministers and where removal could be one option.
It was no secret that many provisions of the 19th Amendment were brought in with the aim of keeping the Rajapaksa family out of power and politics. From the clause banning dual citizens from entering Parliament to raising the minimum age limit for a President to 35, many of the provisions targeted the Rajapaksas. But they can apply to anyone.
In today’s globalised world, it makes no sense to keep dual citizens out, as long as they show a greater commitment to their country of birth. Besides, their experience and networks in the adopted country may be useful in terms of skills transfer and development here. What is needed now is an infusion of ideas from both locals and expatriates on how we can revive the economy and society in the post-pandemic era. If dual citizens can contribute to this noble quest in a meaningful way, then all doors including those of Parliament must be open to them.
The drafters of the 20th Amendment also deserve plaudits for retaining some of the progressive features of the 19th Amendment, such as the Right to Information (RTI). President Gotabaya Rajapaksa has emphasised the importance of accountability, transparency and integrity in governance. His mission is for a corruption-free Government and society and such laws will enable the public to see for themselves whether the Government is on the right track. It would appear that this is the very aim of the 20th Amendment.