The main objective is to ensure that the powers exercised by the Executive President are exercised with both responsibility and accountability. That is, the primary purpose of this 21st constitutional amendment is to ensure the balance of power between the legislature, the Executive and the judiciary in the implementation of the law. The constitutional council was established as a related mechanism.
The primary objective is to allow more than 1.5 million Government employees to become independent as well as to make the service more effective and prevent fraud and corruption. About 90 percent of fraud and corruption occur in the Government machinery during procurement. It is also a cause of inefficiency and negligence.
Therefore, commissions have been introduced. Politicians will not be able to influence their members according to their whims and fancies. An independent audit commission has been appointed to audit all public expenditures approved by the Parliament as well as procurement activities. The success of all three mechanisms is that the entire Government machinery will be held accountable.
That is, the expectation here is to make all three institutions, the legislature, the Executive, and the judiciary, successful.
When it comes to the independence of the State service, the aim is to free it from the grip of politics and to fully ensure the independence of the judiciary. The deficiencies in the Constitution will be removed. Even if the Minister resigns, the power will be transferred to the secretary to ensure the Ministry’s functions can continue.
The 7-day period for challenging a Bill has been extended to 14 days because of the need to move towards a more participatory democracy. The power to appoint a suitable person as the Governor of the Central Bank should be exercised by the President only with the approval of the Constitutional Council.
As the appointment of judges of the high court and senior Government officials is done with the approval of the same, the appointment of suitable persons is done accordingly. Also, politicians should not interfere in independent commissions.
Henceforth, a dual citizen cannot become a Member of Parliament. If dual citizens are in Parliament, they can be removed by going to court. This is a democratic constitutional amendment that goes beyond the 19th constitutional amendment. If this amendment had not happened, we would have been in a very dangerous situation.
This is because there was a threat of Sri Lanka losing the GSP+ and IMF relief. This amendment was also brought forward to save the people who are in hunger. Someone who respects democracy and speaks with emotion about the country cannot say this is wrong. Only an opportunist who doesn’t care about democracy can argue that this is wrong.
A need has now arisen to appoint a Parliamentary Task Force. It is my intention to submit a proposal to the Parliament regarding the formulation of a system to appoint a parliamentary committee to appoint representatives who are answerable to the people and the constituency.
Around 50 percent of the serious deficiencies in our Constitution have been corrected by this constitutional amendment and if a fair election system that is accountable to the people is prepared, the remaining issues can also be resolved to block the corrupt from entering Parliament.
The passed 21A was not what the people expected - Attorney Ajith P. Perera, former Minister and Samagi Jana Balawegaya MP
This is not the constitutional reform expected by the people. This amendment is a reform by only name as only minor changes have been made. The only positive step was the provision that dual citizens cannot become MPs. Other provisions are not that significant. All these amendments were made only due to the pressure exerted by the international community. In other words, it is clear that there was no sincere intention to introduce their proposals. It is a mere eyewash before the international community.
Even though we were aware the Government had no intention to re-establish democracy, we voted for it as it had a few salient features in comparison to what existed previously. During the period of good governance, the 19th Constitution was amended and the Government that was appointed after that brought the 20th Amendment.
The 21st Amendment is a minor revision of the backward steps it took. It must be said therefore we agreed to it for the betterment of the country. Political powers in our country should be handed to people who have declared their loyalty to our country. It is a very clear fact that people who have sworn allegiance to the United States of America or England are not capable of independently dealing with the rights of Sri Lanka.
Unlike ordinary citizens, people who have acquired political power have to think about the country. Therefore it is harmful to the country when persons in such positions are citizens of two countries. We should stand by the country unconditionally.
Steps have not been taken to create sufficient independence for independent commissions. The people of the country expected that the executive presidential system will be abolished and a system of Government accountable to Parliament will be implemented. Our party will create a political system that will abolish the executive presidential system once we sweep into power.
President of the Bar Association of Sri Lanka - Saliya Peiris PC
On October 21, 2022, Parliament passed the 22nd Constitutional Amendment, now known as the 21st Constitutional Amendment.
The bill approved by Parliament is the draft published in the Gazette on August 2, 2022, submitted to Parliament on August 10, 2022, and as per the decision of the Supreme Court, it has been subject to certain amendments at the committee stage.
The need to amend the Constitution arose as a result of public protests across the country in response to the current economic crisis. It has been found that the lack of checks and balances regarding the powers of the Executive including the Executive President is causing the crisis.
Many of the checks and balances introduced by the 19th Amendment regarding the exercise of Executive power have been removed by the 20th Constitutional Amendment. While the 21st Constitutional Amendment has not fully established the status quo prior to the 20th Constitutional Amendment. It is regrettable that it has not created adequate checks and balances on the powers of the Executive President.
The BASL pointed out the shortcomings of the Bill in its previous statements on the 22nd Constitutional Amendment Bill. Also, it indicates a danger that the majority of nominations made to the Constitutional Council will be directed by the ruling party or parties in power, resulting in a decrease in its independence and the impact on the independence and integrity of the positions and institutions appointed through the Constitutional Council.
Nevertheless, now that the 21st Amendment has been enacted, it is imperative that the Constitutional Council be appointed under it and the independent commissions that will be reconstituted thereafter become independent, impartial and trust-building institutions in Sri Lanka. The BASL requests the President, the Prime Minister, the Speaker, the Leader of the Opposition and all the political parties representing the Parliament to first verify the validity of the nominations submitted to the Constitutional Council.
It should be ensured that such nominations are conducted in a manner that inspires public confidence without bias. For this, care should be taken to ensure that the appointments of non-ex officio members of the Constitutional Council, appointed from among members of parliament and non-members, are done transparently and openly.
After the establishment of the Constitutional Council, a transparent, open and inclusive process shall be followed in the nomination of chairpersons and members of independent commissions and other bodies established by the Constitution and other laws. In doing so, persons appointed to the Election Commission, Public Service Commission, National Police Commission, Sri Lanka Human Rights Commission, Bribery or Corruption Investigation Commission, Finance Commission and Delimitation Commission must have the necessary qualifications and abilities.
Moreover, the appointees should also be widely recognised. It is equally important to ensure that the enactment of the 21st Amendment is not used as an excuse or a device to remove commission chairpersons and members who have contributed to building public confidence in such commissions.
It is important that the Government makes provisions for the financial independence of the commissions and that these commissions should adopt procedures that promote accountability and transparency in their work. If the 21st Constitutional Amendment fails in any way to address the issue of creating strong independent institutions in Sri Lanka, it will also affect future legal reform initiatives such as the proposed Comprehensive Anti-Corruption Law and will have a negative impact on the rule of law in Sri Lanka as a whole.
Powers must be given to the COPE - Attorney and Professor Prathibha Mahanamahewa
This constitutional reform is not the 22nd amendment to the Constitution. It has been passed in Parliament as the 21st amendment to the constitution. It makes it fundamentally ineligible for any person holding dual citizenship to sit in Parliament or become a Minister.
Issues arise as to when a dual citizen is eligible or ineligible for a seat. Parliament’s draft on dual citizenship will become a law and Parliament cannot do anything after it is included in the Constitution. If there are people holding dual citizenship, if the fundamental rights of the people have been violated while they are there, then the Supreme Court should reach a decision.
If we talk about independent commissions, the power of the President under the 19th constitutional amendment is limited. The reason is that under Article 19, there were three civil citizens and they made choices regarding appointments. According to 19, whether the President likes it or not, those proposed to the constitutional council are automatically appointed even if the President does not make the appointments.
This is not appropriate in a country where people are sovereign. The executive president must also be given a chance. Three power centres were thus created to deal with it. That is, due to the power centres of the Parliament of the Executive President and the Speaker, a great power has been built up through commissions that claim to be independent. There have been some changes in this regard.
Even though independent commissions are appointed, it is necessary for the Constitutional Council to decide the criteria according to the persons appointed to them. Since there were no such criteria before, problems arose regarding the effectiveness of these commissions and the extent to which the law is implemented.
Among these independent commissions, the best commission I see is the Public Service Commission. It should be independent. It must make sure not to make political appointments. Many of the powers of the Police Commission have been transferred to the Public Service Commission. Increasing the powers of the Public Service Commission is a good trend. The Human Rights Commission is empowered by Act No. 21 of 1996. There is a problem if this constitutional amendment will send the right message to the Geneva Human Rights Council. They are of the opinion that it means that the Independent Commission is not independent. They think that they should work independently.
In order to demonstrate independence, Parliament should be empowered. There is a problem if we will get back the GSP tax concessions we expected through these amendments. This constitutional amendment can be seen as one between 19A and 20A. There has been no change in proportional representation, especially in the voting system. Basic human rights have not changed.
In the future, we will be able to see if commissions that claim to be independent are in fact independent. In this case, the executive powers will continue to be with the executive president. The defence portfolio as well as the environment portfolio must be held by the Executive President. But it would be better if the finance ministry is given to another Minister.
Also, the Parliament should have a monetary control policy. The COPE committee should be given more powers. Because the people are raising the need for a new Constitution, it will be better if a new Constitution is prepared and this situation is rectified.
Also, a referendum should be held. In the case of dual citizens, a judicial decision should be taken. The Election Commission also cannot take a decision in this regard. If these MPs wish they can step down on the basis of ethics. Those suitable must be appointed to Independent Commissions