by Shenali Waduge · 27th May 2022

Democratic principles are being questioned following the scurry to pass the 21^st amendment, drafted by a caretaker Justice Minister and aspiring to pass powers from a directly elected President to a caretaker Prime Minister rejected by voters & undemocratically returning to parliament as a National List MP. All norms and ethics of parliamentary democracy are being questioned. Sri Lanka’s Judiciary cannot allow such a precedence to take place.

FACTS

• Sovereignty is inalienable & with the People – the People delegate their powers to the 3 pillars (Executive-President / Legislature-Parliament / & the Judiciary)
• The Executive & Legislature are only temporary custodian of the powers delegated by the People.
• The President is the only pillar who is directly elected by the People
• The Prime Minister is not elected by the People – he is selected by the Parliament, therefore, the Prime Minister is answerable to the Parliament.
• The current PM is not elected to Parliament.
• The current PM has been rejected by his Party
• The current PM has wrongfully entered Parliament from the backdoor
• The current PM has no mandate of the People /Parliament or his own Party supporters
• 225 Member Parliament comprises 196 elected MPs and 29 National List nominees of political parties.
• National List created to enable professionals to enter Parliament without contesting elections.
• 19a and 20a have shortcomings and before 21a is also hurriedly passed with shortcomings, there should be debate & conclusions to what should remain in 19a & 20a and what should be revised in 19a and 20a. All this does not require a marathon to pass 21a.

QUESTIONS

• If the People elects the President & delegates people’s powers to the President, can that elected President transfer the powers given to him to anyone without asking the People? Should he not have to seek the approval of the People via a referendum?
• If the key argument of the 21amendment is to claim the President has too much powers and requires these powers to be reduced – shouldn’t the People and not Parliament decide whether the President has too much powers?
• If 21a seeks to bring back the Dual Citizenship clause – it will require all MPs in Parliament who are dual citizens as well as Top Public Officials who are also dual citizens to be unseated without hiding their dual citizenship. Will this happen?
• If 21a seeks to return the Independent Commissions it must ensure that no eminent persons who are attached to foreign funded entities are nominated. Clauses to remove them and take action against them must also be included. They cannot be given immunity. If they are acting professionally, they do not require immunity! All the loopholes and shortcomings in the composition of the Constitutional Council & Independent Commissions must be addressed, if not there is little point in returning to 19a CC and Independent Commissions. If any independent commission member wishes to file FR on any matter, they must resign from their position and proceed filing FR.

21a & THE CARETAKER GOVERNMENT

• How can the present Caretaker Government clip the powers of the President via 21^st amendment without asking the People?
• The present Prime Minister held position of Prime Minister 5 times previously but was rejected by the voters in 2020 General Elections. His party could not win any district seats but was given 1 national list seat which was to go to a member of the UNP National List. UNP working committee did not nominate a member of the national list & 10 months after the General Election, returned the rejected former PM to Parliament as a national list member in Jun 2021. This was an unethical democratic action.
• In May 2022, this same former rejected PM has been appointed as PM not by Parliament but by the President. Is this act legal or in the least democratically ethical.
• A new cabinet was also appointed by the President comprising not only the winning party members but members of opposition parties as well. Is this act legal or in the least democratically ethical by the people who gave a resounding victory in the government that people elected in 2020?
• We have a caretaker PM who has no mandate of the People, who has been rejected by his own party supporters, who unethically entered from the backdoor via national list.
• We have a caretaker Government comprising people of different parties who are also not representative of the People.
• How can such a caretake PM and caretaker Government draft legislation to clip the powers of the President via a Bill and transfer powers to a rejected caretaker PM? It is an insult to even seek approval from the People via referendum given the undemocratic practice at play.
• The silence of the people who refrained from objecting to giving a rejected MP returning from the national list the position of PM, was primarily because of foreign pressures to appoint him as a collateral to obtaining foreign aid assistance. This also questions how sovereign Sri Lanka is to have to take permission to make appointments!
• This caretake PM was appointed because foreign aid bodies and foreign governments wanted him to be appointed & his key role was to solve the economic crisis though his government was one of the key architects of the economic crisis from issuing international sovereign bonds that were maturing for payment from 2020 onwards.
• The people were silent even after appointing a rejected MP as PM
• The people were silent when a caretaker cabinet from different parties was appointed
• The people should not be silent as every day new Ministers are getting appointed to again create a burden to the people amidst so much suffering.
• The people should not be silent when a caretake PM is trying to usurp the powers of an elected President.
• The people must think of the issue not taking the person seated in the position but the title and the mandate given to the title and the democratic principles that has to accompany the governance.

Taking this into consideration the Judiciary who will be asked to make a determination on the 21a must disallow all efforts to dilute, transfer or reduce the powers of the President without asking the people at a referendum. In this economic crisis when there is no money to buy basic essentials, we do not require any referendum/elections, therefore 21a should not be a priority and should not be entertained. Parliament should not be wasting time on trying to divide power between themselves but to find ways and means to gain revenue for Sri Lanka reducing unnecessary expenses.

19a and 20a were both unnecessarily hurried for no reason. 21a should not be hurried too. Why is this hurry to pass 21a? Who wants 21a passed & why? What is the purpose & to whose advantage is 21a being hurriedly passed? We want answers before passing anything.

Amendments to Sri Lanka’s Constitution has unnecessarily diluted the constitution & the Judiciary must step in to not be politically pressurized to repeat.

If a rejected MP, can return to Parliament via National List and becomes the PM do we need to hold elections, do we need to elect MPs, do we even need a Parliament? We can run the country with a 29 Member National List only!

If a rejected MP now caretaker PM tries to pass a constitutional amendment to transfer powers given by the People to himself, should this be allowed?

Shenali D Waduge