20th amendment to the Sri Lankan Constitution – why is it controversial and what it means for India

October 16, 2021

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This article is written by Pranjali Aggarwal of the University Institute of Legal Studies, Punjab University, Chandigarh. This article discusses the 20th amendment to the Constitution of Sri Lanka, its implications and controversies arising out of it, and the impact of the amendment on India.

Introduction

The Bill proposing the Twentieth Amendment to the Constitution of Sri Lanka was published on the 2nd of September 2020 in the Gazette of the Democratic Socialist Republic of Sri Lanka. The prime motive of the 20th Amendment is to reintroduce the position that existed after the Eighteenth Amendment in 2010 and to remove many aspects that were brought in by the Nineteenth Amendment in 2018. The 20th Amendment to the Sri Lankan Constitution was passed on 20th October 2020. It was passed with the two-thirds majority in the Parliament (156 out of 225 legislators voted in favor). It is also known as the ’20A Amendment’ or the ‘Lame Duck Amendment’. It has a drastic impact on the law-making process in the country. The major implication of the amendment is the lack of transparency and accountability of the government towards its citizens which are the basis for any democratic country.

Changes made by the 20th amendment and their implications

The changes made by the 20th Amendment in different articles of the Sri Lankan Constitution and their consequences are as follows:

Article 35

Article 35 deals with the immunity to the President. Before the amendment, the President was granted immunity only in the cases of civil and criminal proceedings. The amendment repealed Article 35 entirely and brought in a new Article which provides immunity to the President from all kinds of legal proceedings during the tenure of Presidency except under the following situations:

For acts done by the President when he is acting in the capacity of a Minister or private capacity.
During impeachment proceedings according to Article 129(2).
Election petition relating to the validity of a referendum or Presidential election [Article 130(a)].
Proceedings in the court of appeal under Article 144 or the Supreme Court, regarding the election of a Member of Parliament.

The 20th Amendment has provided immunity to the President in almost every aspect while acting as President. This may result in misuse of powers and centralization of all the powers in the hands of the President.

Article 33

Article 33 deals with the powers and functions of the President. The 20th Amendment repealed this Article also and introduced new powers of the President. He is now entitled to:

Prepare the statement of government policy and preside at ceremonial sittings of the Parliament.
Appoint and accredit Ambassadors, High Commissioners, and other diplomatic agents.
Declaration of war and peace in the country.
Appoint President’s Counsel and Attorneys-at-law.

Thus, the amendment has widened the scope of powers and functions of the President.

Article 41A

The 20th Amendment repealed Chapter VIIA of the Constitution entirely. This Chapter used to deal with the Constitutional Council, but after the amendment, it concerns the Parliamentary Council.

Only the Members of the Parliament can become members of the Parliamentary Council. The members that are elucidated as per the Article will only be loyal to either the ruling party or the main opposition party.
Thus, due to this amendment, there will be no say of other parties in the Council as there is no provision for them to become members and represent their parties. The Council is deprived of the expert perspective also because there is no provision to appoint persons of eminence and integrity. This Council thus totally negates the pluralistic character of Sri Lanka. The power is constrained in the hands of a few people while taking significant decisions.
The recommendations and policies made by the Constitutional Council were binding in nature and the President has to follow them. The amendment altered the position entirely and the Parliamentary Council has been given limited scope. The observations of the Parliamentary Council are only for reference purpose and are now not binding on the President to consider them.
It is the weaker Council with a narrowed-down role in the rulemaking process than the Constitutional Council. The formation of the Parliamentary Council favours the President from every aspect. There is no check on his powers and he enjoys unfettered powers.
Another loophole in the amendment is that it does not allow the provision for appointment of – Right to Information Commission, office on missing persons, office for reparations. Earlier the appointments were made under the recommendations of the Constitutional Council. Now, the amendment has to be made in the individual acts regarding the appointments in these organizations. If no amendments are made the existence of these offices will cease and the citizens of the country will be deprived of their rights.
There is no decided quorum for the meetings of the Parliamentary Council. Any number of members can meet and decide to prepare and provide ‘observations’. Thus, the observations can be biased as they may be developed from the point of view of one party.

Thus, the role of the Parliamentary Council has been reduced and it does not have much say in the matters.

Article 44

Article 44 of the Constitution deals with the powers of the President.

Before the amendment, the President was bound to consult and act on the advice of the Prime Minister while appointing the Members of Parliament as the Ministers. But after the amendment, consultation with the Prime Minister is not mandatory for the President.
Another power that has been envisaged under this Article is that the President can assign himself any subject or function. He will remain in charge of this subject or function that has not been allotted to any Minister additionally to the charge of the President. This was not allowed before the amendment.

This Article has allowed the President to perform and control any function and it is his total discretion to appoint any Member of Parliament as the Minister.

Article 45

Article 45 of the Constitution deals with the Ministers who are not members of the Cabinet and their Ministries, subjects, and functions.

The 20th Amendment eliminates the condition upon the President for the consultation with the Prime Minister regarding the appointment of the Non-Cabinet Ministers.
The President after this amendment is entitled to change the subjects and functions allotted to the Non-Cabinet Ministers. This power before the amendment was only limited to the Cabinet Ministers.
This amendment has even made the Non-Cabinet Ministers answerable to the Cabinet and Parliament.

This amendment reduced the position of the Non-Cabinet Ministers to mere puppets in the hands of the President. They are left to function at the mercy of the President.

Article 46

Even in the case of appointment of Deputy Ministers, the President is not bound to consult the Prime Minister and can take the decision on his own.

Article 47

Article 47 enunciates the provisions regarding the tenure of office of the Prime Minister, Ministers, and Deputy Ministers.

Before the amendment, the President was not entitled to remove the Prime Minister. The only way of removing him was either he resigns or ceases to be a Member of Parliament. But after amendment, he can be removed by the President, as he is subject to the same provisions as the removal of any other Minister.
Before the amendment, the President was bound to take and act according to the advice of the Prime Minister in case he wants to remove any category of the Minister. This power of removal of any Minister can be exercised unilaterally by the President after the amendment.

Thus, all the Ministers including the Prime Minister will hold office according to the will of the President. They will be bound to follow the directions of the President as they will always be under the constant fear of being removed and thus cannot function independently.

Article 48

Article 48 after amendment articulates the conduct of the Cabinet Ministers after the dissolution of Parliament.

Before the amendment, the Cabinet Ministers after the dissolution of the Parliament were to abide by the rules set by the Commissioner of Elections. They were not allowed to exert undue influence because of their power in the General Elections.
After the amendment, this scenario has been changed, and now the conduct of the Cabinet Ministers is not restricted by any provision.

Thus, due to the 20th Amendment, the conduct of the Cabinet Ministers is no longer controlled. They can use unfair practices due to their power and manipulate the election process.

Article 50

Article 50 deals with the appointment of Acting Ministers and Deputy Ministers.

Before the amendment, the President was bound to act according to the advice given by the Prime Minister, regarding the appointment of the Acting Minister. This condition is now removed after the amendment and the President need not consult the Prime Minister.

It’s the total discretion of the President to appoint any Member of Parliament to act as the Acting Minister or Deputy Ministers. No person has any say in the appointment.

Article 52

Article 52 deals with the Secretaries to the Ministries.

Before the amendment, Article 51 dealt with the Secretary to the Prime Minister. This whole provision has been removed after the amendment. Now, there is no separate provision for the secretary to the Prime Minister.
Even the offices that are not deemed as public offices have been changed.

Article 70(1)

Article 70(1) deals with the powers of the President to dissolve the Parliament.

Before the amendment, the Parliament could only be dissolved after four and a half years according to the discretion of the President. If dissolution was to be done before four and a half years, then the two-thirds majority of Members of Parliament was required to pass a resolution.
After the amendment, the President can dissolve the Parliament after one year only according to his own will, except in certain limited situations. The resolution by Members of Parliament regarding dissolution now needs a simple majority only to pass.

This amendment has made the dissolution of Parliament a very simple task. This could lead to the arbitrary dissolution of the Parliament according to the whims of the President. The chances of a stable government would be lost and would lead to instability in the country. The economy and its citizens will face grave repercussions from the instability of the government.

Article 91(1)(d)(xiii)

This Article used to bar the citizen holding dual citizenship to be elected as the Member of Parliament as well as the President. This provision is repealed by the 20th Amendment.

This amendment is directly favouring Gotabaya Rajapaksa (current President of Sri Lanka), and his family who hold dual citizenship. Thus, removing the barriers to their entry into politics and strengthening the hold of the family.

Article 122

Article 122 is added by the 20th Amendment.

Article 122 empowers the President to refer any Bill to the Supreme Court if it is termed as “urgent in the national interest” by the Cabinet Ministers. The Supreme Court now has the power to decide the constitutionality of the Bill.
In the case of urgent Bills, there is no need to publish them in the gazette.

Thus, the Bills can be passed without the citizens even knowing about the contents of the Bill. They are also deprived of the ‘Right of being heard’ in these cases (only the Supreme Court can decide whether they can exercise their right or not as per Article 134 of the Constitution). Though the constitutional amendments could not be passed following this procedure yet many unconstitutional laws can be passed. Thus, through the addition of this Article, any law that can be against the interests of the citizens can be passed by Parliament and the citizens of the country could not object against it.

Article 155

As per Article 155A(1) and Article 155A(4), before the Amendment, the President was bound to appoint or remove any member of the National Police Commission. The Constitutional Council ceases to exist after the amendment and thus this provision is amended accordingly. Now, the President enjoys unrestricted powers regarding the appointment or removal of the members.

Thus, the police force of the country is also in the hands of the President. The police officials will have to work according to the orders of the President otherwise they could be removed from the position.

Article 111D

Article 111D enunciates the provision regarding the Constitution of the National Judicial Service Commission

Before the amendment, the Judicial Service Commission comprised of the Chief Justice and the two senior-most judges that were appointed by the President with the approval of the Constitutional Council. After the amendment, the President can appoint anyone as a member irrespective of their seniority because this condition has been eliminated. Even the approval of the Parliamentary Council is not needed (council formed in place of the Constitutional Council).

Thus, this Amendment hands over all the powers regarding Judiciary to the President. This will hamper the independent working of the Judiciary. The President can influence the judicial decisions because people owing allegiance to him will be preferred while making appointments.

Article 153(1) and Article 154(9)

Article 153(1) envisages the provisions regarding the appointment of the Auditor-General.

Before the amendment, the appointment of the Auditor General was done by the President with the prior approval of the Constitutional Council. After the amendment, this power is unilaterally enjoyed by the President.
Article 154(9) defines the term ‘a qualified auditor’. This clause is repealed by the Amendment

This amendment raises concerns about the transparency of the appointment and the credibility of the person appointed because there is no set formula to judge one’s eligibility.

Article 154(1)

Article 154(1) deals with the powers of the Auditor-General.

Before the amendment, the Auditor-General had the power to audit all the departments of the Government. But, this power is restricted by the amendment and the Auditor-general has no power to audit the office of the secretary to the President.

This will abate the transparency and accountability of the Office and thus, citizens will not be able to trust the functioning of the government.

Article 156A

Before the amendment, Chapter XXIA of the Constitution (Article 156A) was used to deal with the Commission to investigate allegations of bribery and corruption. This article was repealed by the amendment.

Thus, the amendment eliminates the constitutional existence of the commission to investigate allegations of bribery and corruption and there will be no organization to investigate such matters until a new law is enacted by the Parliament regarding it. Thus, the instances of corruption and bribery would hike because there would be no formal organization to regulate and keep a check.

Chapter XXIB (Articles 156B to Articles 156H)

Before the amendment, Chapter XXIB of the Constitution used to deal with the provisions regarding the National Procurement Commission. The amendment repealed the whole Chapter.

Thus, the National Procurement Commission is scrapped. It used to govern, regulate and investigate the procurements by the government institutions. With the abolishment of this Commission, all the procurement procedures remain unregulated.

Reasons for the 20th amendment being regarded as controversial

The primary reasons for considering the 20th Amendment as controversial are as follows:-

Concentration of power

The amendment is favouring the President of the country in every aspect and centralizing power in his hands. The power conferred over the President is unfettered.
Powers of other offices of the government are turned futile. They cannot exercise any power without the approval of the President.
The President is neither answerable to any institution nor his actions are subject to judicial review. Thus, he can use his power arbitrarily to pass capricious orders.
He is unilaterally responsible for key appointments in the country. He is not even bound to consult or act according to the recommendations issued by the Prime Minister or other Councils.

Injury to the independence of institutions

There are some authorities like the judiciary, auditing department, and other key institutions that should work independently in any democratic country. In Sri Lanka, after the amendment, these institutions have turned into the slaves of the President. They have to abide by the directions of the President because their fate is in his hands as he has absorbed all the power regarding their appointments. Thus, we can expect biased verdicts and reports favouring the President.

Unstable Government

The President has the unrestricted power to dissolve the Parliament at any time after one year of the general elections. Thus, the President can dissolve the Parliament according to his will which will affect the stability of the government.
It will also impact the governance and administration of the country because of the systematic failures in the political system of the country.

Difficulty in dislodging of the incumbent ruling family

The Constitution is amended in such a way that it helps retain the ruling government monopoly in politics. The Rajapaksa family currently holds nine ministerial berths in the Sri Lankan government and almost around 75% of the total budget of Sri Lanka is in their hands. At present, they are occupying major positions and in the future; It would be very difficult for other parties to dislodge them from power.
The entire election process is in favour of the ruling party. The rules or regulations that were acting as blocks in their road of power are all removed by this amendment like criteria of dual citizenship for eligibility for the elections etc.
The rules set for the conduct of the Ministers in power at the time of elections have been repealed by the amendment. Thus, they can indulge in unscrupulous practices that can help them win the elections.

Blow to the democracy

The 20th Amendment has weakened the Constitutional law of i.e. supreme law of any country. The economy generally works by adhering to the principles laid down in the Constitution. Constitutionalism and Rule of Law ensure justice and the interest of the public at large. But after the amendment, the Rule of Law and democratic mechanism of the country has failed miserably which will affect the country in every way.
The amendment paves the way for an unlimited and arbitrary government that is not subject to any checks and balances and constraints.
Several changes made in the Constitution infringe the fundamental rights of the citizens like junking of the Right to Information, etc.
The basic tenets of democracy like transparency, accountability, separation of powers, the welfare of citizens are all wiped out through these amendments.
The democracy of Sri Lanka is transitioning towards an autocratic and tyrannical system of government.

India and the 20th amendment

The amendment process in any country is an internal matter and generally does not concern other countries. However, after the passing of the 20th Amendment, India is worried regarding the future steps of the government because of the hasty decisions passed by the government as they hold the two-third majority in the Parliament. India is primarily concerned regarding the abolishment or amendment of the 13th Amendment in the Sri Lankan Constitution.

The 13th Amendment of the Sri Lankan Constitution was the result of the accord between New Delhi and Colombo which was signed on 29 July 1987. It is also known as the Jayawardene-Rajiv Gandhi Accord. It is the sole constitutional provision that safeguards the rights of the Tamils in Sri Lanka. Through this amendment, every province of Sri Lanka got provincial councils. Thus, it helps in conferring power to the Tamil sect and provides the taste of political power, governance of the country. This amendment also gives Tamil the status of the national language. The Sri Lankan Tamils otherwise are a minority and do not enjoy many privileges. There are still certain provisions of the amendment which are not fully implemented.

This amendment is always seen as the hegemony of India in the matters of Sri Lanka. Several attempts have been made to repeal this amendment. Currently, many close advisors to the President like Milind Moragoda, Sarath Weerasekera are avid supporters of the abolishment of the 13th amendment.

If this amendment is repealed, then the constant efforts of India to nudge the Sri Lankan government to implement the amendment fully will go into vain. The Sri Lankan Tamils will lose the only ray of hope that provides them with power and representation in politics.

Thus, both India and Sri Lankan Tamils are concerned about the fate of the 13th Amendment in the future decisions of the Rajapaksa government.

Conclusion

The 20th amendment to the Sri Lankan Constitution has affected the entire Constitution. It has rollbacked the 19th amendment which was seen as the bulwark of modernism and democracy. As a result, the position of the President has been made similar to that in 1978 and 2009. The amendment has bolstered the powers of the office of the President and these powers are unbridled. Thus, the amendment has led to the formation of the central institution of state power which will stand above, and superior to, everything, and everybody else in our society and polity. This amendment can be seen as a blow to democracy and a tide of authoritarianism.

RTI Commissioner of Sri Lanka Kishali Pinto Jayawardena has rightly summarised the effect of the 20th Amendment Bill that “it does not merely reduce the Prime Minister to a peon and the Parliament to a cipher. Rather, it makes the entire edifice of Parliament irrelevant”.

Thus, in my view, the 20th amendment to the Sri Lankan Constitution is highly whimsical and erratic and is a total violation of democratic principles. It focuses on the imperial Presidency and reducing every other organ of the government to mere rubber stamps.

References

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