Criticisms of 20A remain unanswered

It is axiomatic that Constitutional reform in any form is serious business. Since the Constitution is the fundamental law that sets out the governance structure of the country it goes without saying that adequate discussion and reflection among the different stakeholders must inform the process of such reform. Such a conversation must result in identification of the principles that govern such Constitutional reform.

In the case of the 20th Amendment no Constitutional principles consistent with a democratic form of Government are evident. On the contrary the goal of the 20th Amendment appears to be to make the office of the Executive Presidency unaccountable and to relieve the office of the Executive Presidency of the duty of protecting the Constitution.

While apologists for the Government may brush aside the concerns of the Opposition and Civil Society, the fact that even within the Government ranks there is dissatisfaction with regard to several of the proposals contained in the 20th Amendment is clearly an indication of the need to take a closer and harder look at the pending Constitutional Amendment.

The Government has admitted that the 20th Amendment is simply a cut and paste job to restore the provisions of the 18th Amendment. While the indecent haste with which the 20th Amendment is being pursued is difficult to understand in the context of the Government’s declared intention of presenting a new Constitution within six months, it also makes the whole process both clumsy as well as lacking in professionalism.

One example of this is the Government announcing that it intends moving amendments to the 20th Amendment at the Committee stage even before the Supreme Court has made its determination on the petitions challenging the 20th Amendment. While the more prudent option would have been to include the intended amendments and regazette the 20th Amendment, it is also an admission that there are glaring deficiencies in the 20th Amendment.

This is probably why politicians who often scramble to take credit even for the achievements of others are fighting shy of taking ownership of the 20th Amendment .

One of the significant features of the ongoing debate on the 20th Amendment is that Government spokesmen are unable to give reasons to justify some of the extraordinary measures sought to be put in place by the 20th Amendment.

For instance proposals like the abolishing of the Audit Commission, and Procurement Commission, excluding the

President’s Office and the Prime Minister’s office from being subject to Government audit, removing over 120 state owned undertakings from the purview of Government audit, removing the provision which requires the President to be accountable to Parliament, permitting dual citizens to run for Presidency or Parliament, removing the limit on the number of Cabinet Ministers and the removal of the power of citizen to call the President to account for his actions through the Fundamental rights jurisdiction of the Supreme Court are some of the key issues in the 20th Amendment that require justification from the Government. Instead there is a loud silence with no answers forthcoming on their part when these questions are raised.

One of the references to Constitution-making in President Gotabaya Rajapaksa’s Election Manifesto reads as follows: “The constitutional changes that have taken place were introduced to suit the requirements of certain individuals and political parties, and have therefore failed to reflect the peoples’ aspirations. It is our desire to bring about constitutional reforms in accordance with the wishes of the people.”

Government spokesmen will have their work cut out convincing the public that all the contentious provisions in the 20th Amendment are what the people want.

The entirety of the 20th Amendment debate is plagued with many questions that must trouble the moral conscience of the nation. How can their representatives in the Parliament who voted for the 17th Amendment, then voted for an 18th Amendment that was the complete opposite of the 17th Amendment, then once again supported the 19th Amendment and now vote for the 20th Amendment that seeks to undo the positive features of the 19th Amendment?

What does it mean for the legitimacy of the 20th Amendment if it is approved by a two thirds majority (comprising 150 members) repealing the provisions of the 19th

Amendment which was passed in Parliament by around 215 members?

Constitutional reform if it has to have any meaning must necessarily be a collective process in which all stakeholders and all sections of the community take part. It will not suffice if it is adopted by a majority vote in the manner of an election victory. A national consensus across the political divide will be more beneficial than adopting an amendment by the sheer majority of a Parliamentary majority.

The 19th Amendment was a good example of national consensus for constitutional reform. The Yahapalana Government bent over backwards to obtain the buy in of the then Opposition for the Amendment. For this they made compromises including foregoing and amending several provisions in the original 19th Amendment Bill.

The Government could do the same and negotiate a national consensus with the Opposition in respect of the 20th Amendment.

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