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Eighteenth Amendment to the Sri Lankan Constitution

Thangai VS Annan

The Constitution of the Democratic Socialist Republic of Sri Lanka is the official document that outlines the fundamental laws and the structure of government in the island nation of Sri Lanka. This is Sri Lanka’s second republican constitution and was promulgated in its original form on 7th of September 1978 by the National State Assembly.

September 8th 2010

Eighteenth Amendment of the Constitution

The Sri Lankan Parliament this week voted to approve a constitutional amendment, the Eighteenth Amendment that removes the two term limit on the presidency and authorizes the President to appoint the chairs and members of several key independent commissions, judges, and other government officials.

Article 30 of the Sri Lankan Constitution sets the presidential term at six years, but Article 31 limits a president to two terms.  The Eighteenth Amendment lifts that limit and allows a president to run for an indefinite number of six-year terms.

The government’s press release says that the change “will enhance the people’s franchise and give the people a wider choice in the election of a President.

The Amendment also empowers the president to appoint the chairs and members of an array of independent commissions, judges, and other government officials.  The Amendment abolishes the Constitutional Council, a ten-member body created under the Seventeenth Amendment and comprised of members appointed by both the President and leaders in Parliament (including opposition members and a minor party member).  Under the Seventeenth Amendment, the President was empowered to appoint independent commission chairs and members, judges, and certain other officials only upon the recommendation of the Constitutional Council.

The Eighteenth Amendment replaces the old Constitutional Council with a new Parliamentary Council, consisting of five members of Parliament (with only two opposition members).  Under the Eighteenth Amendment the President alone is empowered to appoint independent commission chairs and members, judges, and certain other officials, but “in making such appointments, the President shall seek the observations of the Parliamentary Council.”

The Eighteenth Amendment also requires the President to attend Parliament once every three months.  Under the old Article 32, the President had “the right at any time to attend Parliament.”

The Amendment comes in the wake of President Mahinda Rajapaksa’s 18-point re-election victory in January.  The Amendment will allow President Rajapaksa to run for a third term in 2016.  The BBC has more on the politics behind the Amendment.

History of the Constitution

When the UNP came to power in July 1977 with a five-sixths majority, the second amendment to the 1972 Constitution was passed on 4 October 1977 to bring in the Executive Presidency, and Mr. J. R. Jayewardene, the then Prime Minister, became the first Executive President on 4 February 1978. Before the 1977 General Election the UNP also sought a mandate from the people to adopt a new Constitution. A Select Committee was appointed to consider the revision of the Constitution. The new Constitution, promulgated on the 7th of September 1978, provided for a unicameral Parliament with legislative power and an Executive President. The term of office of the President and of Parliament is six years. It also introduced a form of multi-member proportional representation as the electoral system. The Parliament was to consist of 196 Members, but this was later increased to 225 by the Fourteenth Amendment to the Constitution.

The Constitution provided for an independent Judiciary and guaranteed Fundamental Rights, providing for any aggrieved person to invoke the Supreme Court for any violation of his or her fundamental rights. The Constitution also provided for a Parliamentary Commissioner for Administration (Ombudsman) who could investigate public grievances against Government Institutions and State officers and give redress. It also introduced anti-defection laws, and referendums on certain bills and on issues of national importance.

Constitutional Amendments

Amendment

Date

Subject

First 20.11.1978 Dealing with jurisdiction of the Court of Appeal
Second 26.02.1979 Dealing with resignations and expulsion of Members of the First Parliament
Third 27.08.1982 To enable the President to seek re-election after 4years; vacation of office of President
Fourth 23.12.1982 Extension of term of First Parliament
Fifth 25.02.1983 To provide for by-election when a vacancy is not filled by the party
Sixth 08.08.1983 Prohibition against violation of territorial integrity
Seventh 04.10.1983 Dealing with Commissioners of the High Court and the creation of Kilinochchi District
Eighth 06.03.1984 Appointment of President’s Counsel
Ninth 24.08.1984 Relating to public officers qualified to contest elections
Tenth 06.08.1986 To repeal section requiring two-thirds majority for Proclamation under Public Security Ordinance
Eleventh 06.05.1987 To provide for a Fiscal for the whole Island; also relating to sittings of the Court of Appeal
Twelfth (Not enacted)
Thirteenth 14.11.1987 To make Tamil an official language and English a link Language, and for the establishment of Provincial Councils
Fourteenth 24.05.1988 Extension of immunity of President; increase of number of Members to 225; validity of Referendum; appointment of Delimitation Commission for the division of electoral districts into zones; proportional representation and the cut-off point to be 1/8th of the total polled; apportionment of the 29 National List Members
Fifteenth 17.12.1988 to repeal Article 96A to eliminate zones and to reduce the cut-off point to 1/20th
Sixteenth 17.12.1988 to make provision for Sinhala and Tamil to be Languages of Administration and Legislation
Seventeenth 03.10.2001 to make provisions for the Constitutional Council and Independent Commissions
Eighteenth 08.09.2010 to remove the sentence that mentioned the limit of the re-election of the President and to propose the appointment of a parliamentary council that decides the appointment of independent posts like commissioners of election, human rights, and Supreme Court judges.

September 2010

Sri Lanka’s 1978 constitution is much maligned for it was seen as the root cause of the island’s many problems, social and political. It created an all powerful executive presidency which had no parallels. The Sri Lankan President has no peers when it comes to the powers he/she enjoys. It is the president’s prerogative to appoint judges, personnel to head all key institutions. He also has the power to dissolve the parliament by dismissing governments. No court can institute action against the president.

The move of incumbent Sri Lanka President Mahinda Rajapaksa seeking to repeal the Article 31 (2) of the constitution to pave the way for his third-term election sparks controversy in the country. The article stipulates: “No person who has been twice elected to the office of President by the people shall be qualified thereafter to be elected to such office by the people.”

The president’s immense powers were reflected in the statement of Junius Jayawardene, the creator of the system, which said as President of the Republic, the only thing remained beyond him was the capability to convert a man to a woman and vice versa.

Rajapaksa has achieved what none of his predecessors did – ending the 30 year-old military campaign of the Tamil Tiger rebels to set up a separate state in the north and east regions. He was elected for his second term with a resounding 60 percent of the vote. He won the hearts of the majority Sinhalese who for reasons of sheer nationalism voted for the man whom they claimed liberated them from the clutches of terrorism and unified the Sinhala nation.

Ranil Wickremesinghe, the main opposition leader claims Rajapaksa had no mandate for a change.  He claims that he did not get enough votes to change it and that what he tried to do now is to use defectors from other parties to vote for it.

Other people may have different opinions. Common people insist that the move is a good one.  Ajith Nandalal, a fruit seller said that he supported the move to extend the term for the president.

Rajapaksa has become a cult political figure after his military success. His detractors point to the president’s desire to create a Rajapaksa dynasty.

The Rajapaksas waited in the sidelines as the Senanayake and Bandaranaike dynasties dominated the island’s politics since winning independence from Britain in 1948 until Jayawardene changed the pattern in 1977.

The popular president’s elder son Namal is already a key figure in the administration and the president’s three brothers, Chamal(parliamentary speaker), Basil (the powerful economic development minister) and Gotabhaya (defense secretary and the man credited for plotting the down fall of the Tiger rebels) are all figures of immense stature.

A senior minister Dallas Alahapperuma said that when Jayawardene became president he was 72 years old. Realistically there was no way for him to go beyond a second term. That was why there was only a two term limit.

Rajapaksa was 60 when he was first elected. He will be 72 when he completes his second term in 2016 and by Jayawardene’s precedent should look good for more terms beyond the two.

Rajapaksa is not the only successor of Jayawardene who took office on the strength of the pledge to abolish Jayawardene’s monstrous creation. But like Chandrika Kumaratunga before him, he chose to ignore the pledge once he found himself firmly in the saddle.

The 17th amendment (17A) adopted with cross party support in 2001 was a case in point. The constitutional council was empowered with the presidential prerogative to make the key appointments in the broader concept of depoliticizing the key institutions.

Rajapaksa ignored to implement the 17A throughout citing it was undermining his presidential authority. Purists saw it as the president’s discomfiture to stick to principals of good governance and accountability.

“The government should have implemented the 17A, which would create good governance and improve the rule of law in the country. Therefore this amendment would have an adverse impact on the country,” Newton Wickramasuriya, the chairman of the National Chamber of Industries said.

The Minister of Construction Wimal Weerawansa told reporters that the 18th amendment has eliminated room to topple the government. Weerawansa said the constitutional provisions which sought to weaken the government have now been laid to rest with the passage of the amendment on September 8.

The government’s defense of the amendment is mainly centered around economic development in the post conflict phase that the island is currently going through. “It is generally recognized that to accelerate development a fundamental requirement is a strong executive. That is an absolutely essential condition,” G. L. Peiris, the minister of External Affairs argued.

The Tamil and the Muslim minority have been generally supportive of the powerful presidency relatively better than their majority Sinhala counterparts. Minority leaders, particularly the Tamils used the powers to make demands which the Sinhalese presidents sometimes were obliged to fulfil.

The presidency had at least been able to confer the due status to the Tamil language. Jayawardene in the 1980s was able to legalize the official language status to Tamil.

The main Tamil party Tamil National Alliance (TNA) still stands to oppose 18A.

“It is very undemocratic and flawed in principle,” Suresh Premachandran, a senior TNA legislator claimed. The main Muslim party is in support. “We have risen to the occasion,” Rauff Hakem, leader of the Sri Lanka Muslim Congress said.

The 1978 constitutional process and the 18A both have a thing in common — the lack of time allowed for public debate to weigh the pros and cons.

US Condemns Sri Lanka Constitutional Amendment

The United States on Saturday condemned Sri Lanka’s passage of a constitutional amendment granting the president new powers, saying it undermined democracy.
U.S. State Department spokesman P.J. Crowley called on Mr. Rajapaksa’s government to take steps to strengthen independent institutions, increase transparency and promote national reconciliation.

The government argued the constitutional change was justified to give Mr. Rajapaksa time to build Sri Lanka’s economy after a long civil war with Tamil Tiger separatists.

Opposition and rights groups criticized the measure as a blow to democracy and a step toward dictatorship by Mr. Rajapaksa. Critics also accuse him of stifling dissent, jailing opponents and disregarding the rule of law as he holds an office with almost unchecked control of the government.

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