The Proposed 22nd Amendment to the Constitution – Brief review
The proposed 22nd amendment (‘amendment’) to the Constitution of the Democratic Socialist Republic of Sri Lanka (‘Sri Lanka’) was gazetted on 29th June 2022 on the Orders of the Minister of Justice, Prison Affairs and Constitutional Reforms; presented to the Cabinet and approved on 26th June 2022.
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The Bill replaces the 21st amendment Bill.
?The amendment seeks reforms that will limit the powers of the Executive President and enhance the role of the Prime Minister whilst giving certain key powers back to the Legislature. Independent oversight of government is provided for by the establishment of the Constitutional Council and nine (09) independent Commissions. The independent Commissions are the Public Service Commission, Election Commission, National Police Commission, Audit Service Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission and a National Procurement Commission.
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Key features:
The Constitutional Council[1]
The re-establishing of the Constitutional Council (the ‘CC’) which was replaced by the Parliamentary Council as functions currently.
?The CC is to comprise of the Prime Minister (‘PM’), Speaker, Leader of the Opposition (‘LO’), One (01) Member of Parliament (‘MP”), one (01) MP nominated by agreement of the MP’s other than those representing the Government and those belonging to the political party or independent group to which the LO belongs, one (01) MP appointed by the President and two (02) other MPs and three (03) persons appointed by the President, upon being nominated as follows:
?(i)??One (01) MP nominated by agreement of the majority of the MP’s representing the Government;
(ii)??One (01) MP nominated by agreement of the majority of the MPs of the political party or independent group to which the LO belongs; and
(iii)??Three (03) persons nominated by the Speaker in consultation with the PM and the LO by agreement of the majority of MP’s
?The appointments are intended to reflect the pluralistic character of Sri Lankan society, including professional and social diversity,[2] whilst those not being MP’s requiring to be persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party whose nomination shall be approved by Parliament in terms of the process laid out.
Members of the CC not being MP’s can be removed by the President on a resolution passed by the majority of the MP’s[3]
?The powers of the CC, include:
Approving appointments of the Chief Justice and President of the Supreme Court and Court of Appeal and the Judges of such Courts, ?Members of the Judicial Service Commission other than the Chairman, the Attorney-General, the Governor of the Central Bank of Sri Lanka (‘CBSL’), the Auditor-General, the Inspector-General of Police (‘IGP’), the Parliamentary Commissioner for Administration (Ombudsman) and the Secretary-General of Parliament.[4]
Recommending appointments to statutory bodies to include, ?the Election Commission, National Police Commission, Commission to Investigate Allegations of Bribery or Corruption, Delimitation Commission etc[5].
The amendment, provides for all Commissions, other than the Election Commission, to be to responsible and answerable to Parliament.
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The role and function of the Prime Minister and Cabinet:
The mandate of the PM to be a part of the decision-making power of the President has been strengthened, to wit;
The President shall consult the PM in determining the number of Ministers to the Cabinet and Ministries to include the assignment of subjects and functions to those appointed Ministers appointed from among the MP’s s of Parliament, and the Ministers to be in charge of the Ministries; ?
The President will be the Minister in Charge of Defence, The Ministers of Cabinet and their subject and functions shall be determined by the President on the advice of the PM. Until the dissolution of the present Parliament (ninth Parliament) the President will make decisions not on the ‘advice’ of the PM but?in ‘consultation ‘with the PM.[6]
A Minister maybe be removed from office under the hand of the President but only on the advice of the PM.
Importantly, the Presidential powers to remove the PM at his discretion has been fettered with such removal being possible, only if the President is of the opinion that the PM has ‘lost the confidence’ of Parliament.
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Audit Service Commission
The amendment, vests with the Commission the responsibility for the appointment, promotion, transfer, disciplinary control and dismissal of the members belonging to the Sri Lanka State Audit Service.[7]
It is significant to note that the amendment introduces as an offence, the ‘influencing or attempting to influence a decision of the Commission or any officer of the Sri Lanka State Audit Service’.[8]
Changes to the provisions regulating the National Police Commission
The amendment vests in the Commission all powers:?
in relation to appointment, promotion transfer, disciplinary control and dismissal of police officers other than the IGP, which powers shall be exercised in consultation with the IGP; ?
to 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.
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Commission to Investigate Allegations of Bribery or Corruption[9]
The amendment vests with the Commission the powers and authority:
to inquire into and investigate allegations of bribery or corruption;
implement the United Nations ‘Convention Against Corruption’ and any other International Convention relating to the prevention of corruption, to which Sri Lanka is a party.
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Ordinary exercise of constitutional jurisdiction of Supreme Court in respect of Bills[10]
Extending the time limit to Fourteen (14) days from the current one (01) week from the date a Bill is placed on the Order paper of Parliament, within which period of time a reference to the Supreme Court may be made to determine any question in respect of the Bill.
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The current status of the Bill:
As of the date of this post the 22nd Amendment Bill is pending presentation to Parliament.
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[1] Chapter VIIA
[2] Article 41A(4)
[3] Article 41 A (8) (b)
[4] Schedule to Article 41 (c )
[5] Schedule to Article 41 (b)
[6] Article 44
[7] Article 153(c )
[8] Article 153(d)
[9] Chapter XIXA
[10] Chapter XVI (Article 121)