The proposed 21st Amendment to the constitution of the Democratic Socialist Republic of Sri Lanka was published via gazette supplement dated 6th May 2022. The said bill was introduced as a private member’s bill and was presented to the cabinet on 17th May 2022
In brief, the bill proposes significant changes/reductions to the powers and duties vested in the executive president under the current constitution whilst seeking to enhance the role of the Prime Minister. In addition, the bill also seeks to introduce and reinstate certain independent supervisory bodies such as the Public Service Commission, National Police Commission, Audit Service Commission and National Procurement Commission with the aim of strengthening the checks and balances of the organs of government as means of maintaining sufficient separation of powers and a healthy democracy. The proposed amendment has also been described as an attempt to reintroduce elements of the 19th amendment constitution which had been repealed by the 20th amendment.
Salient features of 21st Amendment Bill :
- The role of the executive presidency
Under the current Constitution the role/powers/functions of the executive presidency are set out in Articles 33. The proposed amendment seeks to reduce the role of the executive presidency by removing/limiting certain powers currently vested in the Executive President such as
- Except as otherwise provided by the Constitution, to act on the advice of the Prime Minister
- Under the 21st amendment the Prime Minister is the Head of the Cabinet as opposed to the President
- To make the Statement of Government Policy in Parliament at the commencement of each session of Parliament
- The sole discretion to appoint and accredit Ambassadors, High Commissioners without anyone’s advice
- The draft bill introduces the Article 34 (4) which prevents the President from exercising any of the powers pertaining to the grant of presidential pardons save and except with the concurrence of the Prime Minister and the leader of opposition. (34(1), 31(2) and 34(3))
It is observed that whilst the draft 21 Amendment Bill seeks to limit the role of the President it does not seek to outright abolish the executive presidency.
2. Constitutional Council
The office of the constitutional council was initially introduced by the 17th amendment. The Constitutional Council was created to, inter alia recommend/regulate appointments of certain statutory bodies like The Election Commission, The National Police Commission, The Commission to Investigate Allegations of Bribery or Corruption etc. The Constitutional Council also had the power to approve appointments of The Chief Justice and the Judges of the Supreme Court, The President and the Judges of the Court of Appeal. The Members of the Judicial Service Commission, other than the Chairman etc
The Constitutional Council was replaced by the Parliamentary Council in 20th amendment and the proposed 21st amendment reintroduced the Constitutional Council.
3. The role and function of the Prime Minister and Cabinet:
The Bill seeks to repeal the existing Chapter (VIII) (“the Executive- The Cabinet of Ministers”) and introduce a new Chapter (VIII).
The proposed amendment enhances the power of the Prime Minister and makes him the Head of the Cabinet (whereas under current constitution, the President is the Head of the Cabinet).
The proposed 21st amendment also sets out limitations to the number of Ministers. The bill sets out that Ministers of the Cabinet of Ministers shall not exceed 25 and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not exceed 25. In terms of the current constitution Ministers of the Cabinet of Ministers shall not exceed 30 and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, exceed 40.
4. . Audit Service Commission
An Audit Service Commission has been introduced by the proposed 21st amendment and the same is responsible of appointment, promotion, transfer, disciplinary control and dismissal of the members belonging to the Sri Lanka State Audit Service. It is also responsible for making rules pertaining to schemes of recruitment, the appointment, transfer, disciplinary control and dismissal of the members belonging to the Sri Lanka State Audit Service (Article 153 (C))
It is also noteworthy that this chapter also proposes the introduction of the offence of influencing or attempting to influence decision of the Commission or any officer of the Sri Lanka State Audit Service. (Article 153D)
5. Proposed changes to the provisions regulating the National Police Commission
The amendment seeks to repeal Article 155FF (Powers of the Commission) and reintroduces Article 155G stating that the powers of the Commission in relation to appointment, promotion transfer, disciplinary control and dismissal of police officers other than the Inspector General of Police, shall be vested in the Commission. The Commission shall exercise its powers of promotion, transfer, disciplinary control and dismissal in consultation with the Inspector – General of Police.
The proposed amendment further states that the Commission shall establish procedures to entertain and investigate public complaints and complaints of any aggrieved person made against a police officer or the police service, and provide redress as provided by law. In the event of the Commission providing redress, the Commission shall forthwith inform the Inspector-General of Police.
6. Introduction of new chapters regulating certain government institutions
The bill introduces new Chapters regulating the National Procurement Commission (Chapter XIX-B), The National Security Council (Chapter XIX-C) and The Council of the State (Chapter XIX- D) (a council which is a forum for the public to provide non-binding advice to the government in relation to the matters of national importance).
Current status of the 21st Amendment Bill:
It is reported that the proposals for the 21st Amendment to the Constitution have been presented to the Cabinet of Ministers today on 23rd May, 2022 and the Cabinet has decided to forward the draft proposals to the party leaders for their comments.
