Which 21st Amendment? What can bring sanity to the system? – The Island

by Dr Laksiri Fernando

Is there any rationale behind trying to amend the Structure throughout a extreme financial disaster within the nation? Completely different individuals give completely different solutions to the query. Those that introduced the twentieth Modification, which has strengthened the powers of the President instantly and not directly try to scuttle any modification. The ex-Minister of Finance, Basil Rajapaksa, is meant to be main this faction inside the majority celebration in Parliament, Sri Lanka Podujana Peramuna (SLPP). Can anybody have any doubt the place the President, Gotabaya Rajapaksa, stand on this problem? He clearly can’t be like Maithripala Sirisena when the nineteenth Modification was introduced in.

Then there are individuals who imagine that the presently promoted twenty first Modification isn’t sufficient. It goals to chop some wings of the President, however not all. Eran Wickremaratne has expressed this view to the Sunday Island (5 June 2022). This is identical view expressed by Ranjith Maddumabandara because the Secretary of the Samagi Jana Balawegaya (SJB), below whose identify there’s a written proposal earlier than Parliament. Advocacy is for a systemic change and abolition of the presidential system altogether. One sturdy argument from this faction of individuals is that ‘President’s arbitrary powers had been on the coronary heart of the current financial disaster which can’t be ignored by anybody. Aside from the SJB, the opposite events just like the JVP and TNA appear to carry the identical view.

The Bar Affiliation is one other protagonist. They are saying, ‘the brand new modification will let President Gotabaya Rajapaksa hold most of his powers, together with energy to carry Ministries, assign topics to himself, appoint whom he needs as Secretaries, dissolve Parliament early and limitless powers to pardon anybody.’

Though not expressed in written kind or by interviews, this is identical sentiments expressed by the final opinion of the protest motion at Galle Face, Aragalaya (Wrestle). They instinctively imagine that there’s not a lot level in having a revised position for the President, whereas Gotabaya Rajapaksa is on the helm of that place. The slogan ‘Go Gota Go’ signify this sentiment.

Two Drafts

Within the internet web page dedicated to ‘constitutional modification proposals’ within the Parliament web site, there are two drafts offered, unusually the primary because the twenty first Modification and the second because the twenty second Modification, though each aiming for a similar objective. They need to have been simply named as ‘twenty first drat Modification 1’ and ‘twenty first draft Modification 2.’

The primary draft is within the identify of Samagi Jana Balawegaya and the second is within the identify of an Unbiased Group of MPs, though it’s nicely often known as what the current Minister of Justice, Wijayadasa Rajapaksha, has proposed.i

Each drafts declare “Within the occasion of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala textual content shall prevail,” however no Sinhala texts of the proposals are offered. Though Sinhala is the mom tongue of many (together with mine), for the needs of laws and authorized enactments, English ought to have been the language of operation. Many of the authorized and constitutional rules and phrases are in (or borrowed from) English, and it’s with difficulties that they’re translated into Sinhala or Tamil.

It’s stated {that a} new draft was mentioned on the Cupboard assembly on the sixth of Could, nonetheless, nothing is authorised. The choice is to distribute the draft among the many political leaders in Parliament and with their viable proposals a brand new draft to be authorised by the Cupboard inside two weeks. Solely new addition seems to be the prohibition of twin residents to come back to Parliament and maintain workplace.

A Comparability

Whereas Rajapaksha proposal is restricted to reestablishing impartial commissions, the SJB proposal is much reaching with the target of changing the current presidential system right into a parliamentary democracy. Undoubtedly this requires a referendum along with two thirds majority in Parliament. Starting with amending Article 4 there are a number of different articles and paragraphs proposed to be amended to attain this goal.

Article 30 is proposed to amend, because it says, “the deletion of the phrases “the Individuals” in paragraph (2) of Article 30, and the substitution subsequently of the phrases “Parliament, within the method offered in paragraph (3) of this Article.” Accordingly, paragraph 3 of the article is the mechanism by which a President is elected by Parliament in accordance with this proposal. It clearly says,

“A citizen certified below Article 88 and never disqualified below Articles 89 or 92 shall be elected [as President] by a easy majority of the Members of Parliament, inside 4 weeks of its first sitting, by secret poll, in accordance with such process as Parliament might by legislation present.”

One benefit of Rajapaksha proposal is that it is perhaps authorised by a two thirds majority of Parliament, just like the nineteenth Modification or the twentieth Modification with out a referendum. It focuses on amending the Chapter VIIA (Constitutional Council) and Chapter XIXA (Nationwide Procurement Fee) of the Structure. The identify of ‘Constitutional Council’ in each drafts is a misnomer which has nothing on to do with the structure, however appointments to excessive positions and numerous different commissions assign with the identical operate. It may very well be higher named as ‘Larger Appointments Council.’

Within the case of SJB proposal there are a number of different chapters proposed to be amended or inserted with the intention of general systemic change. Along with the Constitutional Council and the Nationwide Procurement Fee, a revision to the Chapter VIII on the ‘Government: The Cupboard of Ministers,’ ‘A Fee to Examine Allegations of Bribery and Corruption’ (proposed Chapter XIX-A), ‘Nationwide Safety Council’ (proposed chapter XIX-C) and a ‘Council of State’ (proposed chapter XIX-C) are proposed.

What’s Legitimate?

There isn’t any legitimate proof to argue that when a rustic is in an financial disaster, no political or constitutional reforms needs to be undertaken. Quite the opposite, many experiences in Latin America present that political and constitutional reforms go hand in hand with financial reforms. Political elements typically may be the plain root causes of financial issues. Many of the democratic nations think about ‘good governance’ as a essential precondition for help and help.

Within the case Sri Lanka, the powers, features, and practices of the Government President may be thought of on the coronary heart of the current disaster. Who ordered the chemical fertilizer ban in Sri Lanka? After all, the entire disaster can’t be blamed on one individual. There’s a higher understanding right now that prime stage bureaucrats within the Treasury, Central Financial institution, Customs and Ministries are answerable for the disaster. However who has appointed them primarily based on political/private loyalty with out contemplating skilled and different {qualifications}? It’s the President.

Wijayadasa Rajapaksha has expressed a ‘worry’ that abolition of the Government Presidency swiftly will plunge the nation into anarchy’ (The Island, 8 June 2022). After all, there shouldn’t be a haste. It is a matter mentioned for an extended interval. In 2000, below Chadrika Kumaratunga, there was a proposal for a brand new structure with the abolition of the presidential system. If the presidential system is justified due to the provincial council system, as Rajapaksha argues, individuals on this nation right now faces the adverse penalties, the President not holding elections for these Provincial Councils if he’s the chief.

Rajapaksha proposed modification doesn’t change the position of the President in appointments though impartial commissions are established. The next is one instance.

“41C. (1) No individual shall be appointed by the President to any of the Workplaces specified within the Schedule to this Article, until such appointment has been authorised by the Council upon a advice made to the Council by the President.”

It might seem restrictive of presidential powers because it begins with the phrase ‘no individual shall be appointed by the President.’ Solely situation is that the approval of the Council, however once more ‘on the advice made to the Council by the President.’

After all, the electoral system can also be at fault together with the presidential system to the current predicament within the nation. Electoral system additionally needs to be modified. Most of the defects are on the illustration stage, MPs turning into separated from the voters, and with the orientation in direction of corruption. These are some causes for an electoral change.

There may be some hesitation on the a part of the individuals, drained due to the financial difficulties, to go for a referendum. Nonetheless, it would quickly change in the event that they understand the chance to vary the system, or to ship Gotabaya dwelling. That is my conclusion.