Adverse impact of the 18th Amendment on governance

This Position Paper is issued by Transparency International Sri Lanka (TISL) after analyzing the process and contents of the 18th Amendment to the Constitution but the focus is solely on the vital aspects of accountability and governance.

BACKGROUND

(November 04, Colombo, Sri Lanka Guardian) Sri Lanka has a written Constitution which permits amendment or repeal. Except identified entrenched provisions , the Constitution can be amended by Parliament with a two thirds (2/3) majority. The present Constitution introduced in 1978 was amended 17 times prior to the amendment discussed in this Position Paper. Furthermore, there were five other abortive attempts which also included an attempt to introduce a new Constitution.

According to the Constitution, Sri Lanka has an Executive Presidential system which has very limited safeguards against abuse of power, while the President enjoys immunity. The President also has power, among other things, to dissolve and prorogue Parliament without reasons, to retain Ministerial portfolios and to make key appointments. Two of the notable safeguards are;
i) the limitation of two terms for an individual to be elected President and
ii) the introduction of a mechanism under the 17th Amendment to the Constitution, limiting the President’s power to appoint people to key positions.

At the Presidential Election held on 26 January 2010, President Mahinda Rajapaksa, the incumbent President and the Leader of the United Peoples Freedom Alliance (UPFA) was elected for the second time, as the country’s fifth President with an unprecedented 57.88% of the total number of votes polled. Within three weeks, Parliament was dissolved and on 8 April 2010 people cast their vote to elect the 14th Parliament of the Democratic Socialist Republic of Sri Lanka. The election manifestos of the main political parties promised either to abolish the Presidential system or to convert to a trusteeship suggesting “controls of executive power” , meaning reduction of the powers of the Executive.

As at July 2010, the composition of the 225-strong Parliament was: UPFA 144, United National Party (UNP) 60, Tamil National Alliance (TNA) 14 & Democratic National Alliance (DNA) 7. The UPFA was only six short to obtain the magical figure of 150, which forms 2/3rd of Parliament. On 5th August, two MPs of the Opposition pledged their support to the Government, further strengthening its majority in Parliament.

On 31 August 2010, newspapers reported that an amendment to the Constitution had been approved by the Cabinet certifying that it was “urgent in the national interest”. The urgency cannot be understood as the President has not been installed in his second term by this time.
Between 3 & 8 September 2010, seven Opposition MPs crossed over to the Government while eight others decided to vote in favor of the constitutional change (which was not known publicly) while remaining in the Opposition. This was more than sufficient for the Government to obtain the 2/3rd majority to amend the Constitution.

Although the Constitution provides for the cessation of membership in Parliament on the expulsion from the respective political party, due to the interpretations given by the Supreme Court, such expulsion of an MP from a political party is made almost impossible . Thus the Opposition has been seriously destabilized. In this background, the media reported that a constitutional amendment had been drafted secretly, but information on the proposed amendment was not in the public domain.

On 30 August 2010, the proposed Bill was forwarded by the President to the Chief Justice requiring a determination as to whether the Bill required to be passed by a referendum in addition to 2/3rd majority in Parliament. On 31 August 2010, the Supreme Court consisting of five judges heard the matter where six intervenient petitioners also made submissions. It was apparent that none of the intervenient petitioners had sufficient time to prepare themselves for the case and, in fact, the copy of the Bill that they secured through undisclosed sources was not the same as what was relied upon by the AG or the Court.

On 7 September 2010, the Speaker announced in Parliament that he had received the determination from the Supreme Court and that the Bill could be passed with a 2/3rd in Parliament without reference to the people at a referendum. On 8 September 2010 the Amendment was passed with 161 voting in favor while only 17 members opposing it. The other opposition MPs decided to boycott the debate in protest.

Several organizations, including TISL expressed concern, among other things, for the manner in which such a vital Bill was rushed through, virtually not giving any opportunity for the country to consider the provisions and depriving Parliament and the Supreme Court of sufficient time to consider its implications. Among those who urged the Government not to proceed with the proposed Amendment as an Urgent Bill was the Bar Association of Sri Lanka, the representative body of all the lawyers in the country and the clergy.

Two main issues relating to the process of introducing a Bill were also raised both before the Supreme Court as well as in Parliament; firstly, the introduction of the Bill as an Urgent Bill, when there was, in fact, no urgency having regard to the fact that the next presidential election was six years away; secondly, the Bill had provisions encroaching on the devolved subjects and thus the Provincial Councils should have approved the Bill before being placed on the Order Paper. When the Bill was moved by the Prime Minister on 7 September 2010, it was realized that the Bill had not even been distributed among the MPs.

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