Even as Sri Lanka’s opposition parties have stepped up efforts to enact the 21st amendment to the constitution, the Cabinet of Ministers has been dragging its feet with regard to giving its approval to the draft legislation.
The architect of the amendment, Justice Minister Wijeyadasa Rajapakshe, said that the 21st amendment attempts to reduce the powers of the president and prevent people with dual citizenship from holding parliamentary seats. Explaining the inordinate delay in the Cabinet approving the draft, the justice minister said after the weekly cabinet meeting on Monday that ministers felt the need to further educate leaders of political parties on the amendment.
However, Sri Lankan media have reported that the delays were caused by strong disagreements among parliamentarians. While a section of parliamentarians led by Prime Minister Ranil Wickremesinghe and Rajapakshe are pushing for the 21st Amendment, other members of parliament (MPs), who are believed to be supporters of Basil Rajapaksa, who recently resigned from parliament, have insisted that providing economic relief is more important at this juncture than constitutional amendments. A brother of President Gotabaya Rajapaksa, Basil was earlier minister of finance.
On the other hand, opposition political parties are insisting that the 21st Amendment does not adequately limit the powers of the president. They claim that the president still has significant powers that can undermine the supremacy of parliament.
Executive Presidency
Sri Lanka has an executive presidential system. The powers vested in the president have resulted in the marginalization of the parliament and the role of the prime minister.
The executive presidency was introduced in 1978 to establish a more stable, centralized, and authoritarian political structure to take Sri Lanka into a new age of market reforms, economic dynamism, and global re-integration. By the late 1970s, there was a belief among the local elites that the Westminster-style prime ministerial system had led to unsustainable welfare spending, excessive state regulation of economic activity, and economic stagnation. In essence, the empowering of the president was a move against populist electoral democracy. As Sri Lanka’s first executive president, Junius Richard Jayewardene, observed, the post of executive president he had created was one that “would not be subject to the whims and fancies of Parliament.”
The executive presidency is by its very definition anti-democratic; in a parliamentary system the prime minister is answerable to elected representatives of the people continuously as s/he can only remain prime minister as long as s/he can command the confidence of parliament.
This is not the case with the executive presidency; the only way to get rid of an executive president is through “impeachment, resignation or military coup.”
The executive president makes important appointments such as those of prime minister, cabinet and non-cabinet ministers, provincial governors, public officials, ambassadors, commissioned officers of the armed forces, the chief justice, justices of the Supreme Court, etc. The president can declare a state of emergency anytime s/he chooses, grant pardons to convicts and enjoys immunity from both civil and criminal proceedings.
In 1994, 1999, 2005, and 2015, Sri Lankans voted for candidates who promised the abolition or reform of the executive presidency and there were attempts to limit the powers of the executive. Then there have been times when the Sri Lankan public have supported an all-powerful executive presidency, especially when the Rajapaksas have been able to convince them that a strong president with unrestricted power is needed to ensure national security. This argument was used to pass both the 18th and 20th amendments to the constitution in 2010 and 2020, respectively.
From the 17th to 20th Amendments
In the past 20 years, four amendments relating to the executive presidency were made. The 17th and 19th amendments reduced the powers of the president and as mentioned earlier, the 18th and 20th amendments did the opposite.
The 17th amendment of 2001 reduced the president’s powers with regard to the appointment of the upper judiciary and independent commissions such as the election commission and the bribery or corruption commission.
In 2010, then-President Mahinda Rajapaksa ushered in the 18th amendment, which repealed the checks and balances of the 17th amendment. The 18th amendment removed the two-term limit for the presidency, replaced the 10-member Constitutional Council with a five-member Parliamentary Council, and brought the independent commissions under the president’s authority.
Following the defeat of Mahinda Rajapaksa in 2015, President Maithripala Sirisena undid most of the changes made by the 18th amendment through the 19th amendment. The 2015 amendment restored the two-term limit for presidency and made it mandatory for executive to consult the prime minister when making ministerial appointments. It also made the president liable to fundamental rights litigation on any official act.
The 20th amendment of 2020 under the current administration was probably the worst legislation with regards to the executive presidency. Passed a few months after the Rajapaksas’ Sri Lanka Podujana Peramuna got close to a two-thirds majority in parliament, the 20th amendment undid most of the reforms brought about by the 19th amendment. It gave the president sole authority to appoint all judges of the superior courts, suspended Standing Order 50 (2), which required every bill to be referred to the relevant Sectoral Oversight Committee for consideration prior to being debated in parliament, and removed clauses that banned dual citizens from becoming parliamentarians.
The 21st Amendment and the Future of the Executive Presidency
Since the 1990s, there has been a debate over whether the executive presidency must be removed in its entirety or whether making tweaks to the system was sufficient. The 1978 constitution makes it virtually impossible for the executive presidency to be repealed. One needs a two-thirds majority in parliament and the assent of the public through a referendum even to make changes to the executive presidency. Given the complications of the process, reformers have preferred to amend the system as discussed above.
The recent economic collapse under President Gotabaya Rajapaksa seems to have convinced people that the executive presidency is to blame for the crisis and has to be at least reformed. This is similar to the public sentiment in 2015, when the excesses of President Mahinda Rajapaksa’s second term led to his electoral defeat.
The current economic crisis in Sri Lanka is the worst since independence and apart from a few periods, such as the 1983 anti-Tamil violence, the 1971 and 1987-89 insurrections, one would be hard pressed to find similar or worse political and social instability than what the island is struggling with at present.
Most of the problems faced by Sri Lanka today, from corruption to ad hoc laws that have had disastrous consequences for food sovereignty, can be blamed on the concentration of powers in the hands of one person, i.e., the executive president.
An executive presidency under a visionary leader could do much public good. However, a look at Sri Lankan history since 1978 shows that this system has been a disaster for the country. The country has been most stable, and achieved more when the powers of the executive presidency were limited by amendments to the constitution.
While addressing political, economic, and social instability is important, reforms that could assuage the public anger against the political class and institutions is a must for Sri Lanka.
There is significant anger against the president and the government, and this will only grow in the coming months as people lose their jobs due to the economic crisis. It is unlikely that hundreds of thousands who are rendered jobless would be willing to follow the directives of a president and a government that does not seem to listen to the people.