Sri Lanka - Government
The president appoints and heads a cabinet of ministers responsible to Parliament. The president's deputy is the prime minister, who leads the ruling party in Parliament. Sri Lanka's 1978 Constitution was structured by the United National Party [UNP], which was then in power, with the idea that the president and the PM would be from the same party. Successive constitutional changes over the last three decades have concentrated a progressively larger share of power in the President's hands.
Sri Lanka's president said 20 August 2020 he would use the overwhelming mandate received by his governing coalition in recent parliamentary elections to remove a constitutional amendment curtailing presidential powers and limiting the president to two terms. During a policy speech at the opening of the new parliament, President Gotabaya Rajapaksa said his government will abolish the 19th Amendment as a matter of priority and then work on a new constitution.
Many politicians, lawyers, and academics agree that the Constitution has a need for improvement. They highlight the weak electoral system as one area where change is needed. One of the likely constitutional changes that would be addressed is abolishing the executive presidency in favor of an executive prime ministership. Most lawyers and constitutional experts agreed with this idea, believe there would be more checks and balances on the power of an executive prime minister. Even the two major political parties, the SLFP and UNP, at various times have agreed to put executive power in the office of the prime minister. Although President Mahinda Rajapaksa's 2005 electoral campaign manifesto promised to abolish the executive presidency, the concentration of power in the Presidency accelerated during the Rajapaksa administration. The 10th amendment was added by Maithripala Sirisena to reform the country's political system by reducing the ability of presidents to amass extensive powers.
There was disagreement, however, on the manner in which the Constitution should be changed. In a constituent assembly, bills and other matters would only need a simple majority for passage. In Parliament, constitutional change requires a two-thirds majority plus a simple majority affirmation in a national referendum. When the government last convened a constituent assembly in 1972, the SLFP was in power with five-sixths of the MPs in Parliament (this was prior to the current proportional election system now in place). In 1972, all the MPs in the Parliament were converted into members of the constituent assembly. Many of the opposition parties ultimately walked out because they did not agree with the discussions and the new Constitution was written largely by the SLFP government in power at the time. The current 1978 Constitution was written and changed in Parliament, not in a constituent assembly.
In 2015, a new era dawned on the Socialist Democratic Republic of Sri Lanka. The exact date was 8th of January 2015 when President Maithripala Sirisena was elected by the people as sixth Executive President. President Sirisena brought forward the proposition to reduce the power of Executive Presidency which set a good example. The position then was getting more and more power into the hands of a few, but the situation w changed.
The Sri Lankan Parliament on 09 January 2016 began a process to formulate a new constitution, with Prime Minister Ranil Wickremesinghe presenting a resolution to set up a Constitutional Assembly (CA) of all members for the purpose. Wickremesinghe moved the resolution in parliament to set up a CA of all members and a steering committee of 17 members to draft the new constitution. Parliament will be transformed into the Constituent Assembly. The new Constitution seeks to abolish the system of executive President, introduce a new electoral system and a new constitutional arrangement to resolve the Tamil issue. The Sirisena unity government aimed to address the Tamil minority concerns on devolution of power to the Tamil regions in the new Constitution.
The Executive Presidency was established by President JR Jayewardene in 1978. There had been five Executive Presidents through 2014, two of them having served both terms then allowed, and one who was assassinated in his first term, one a president elected by Parliament, to serve the balance term, after that assassination, and Mahinda Rajapaksa who served two terms of office, having first won it in 2005.
Under the 1978 constitution, the president of the republic, directly elected for a 6-year term, is chief of state, head of government, and commander in chief of the armed forces. Responsible to Parliament for the exercise of duties under the constitution and laws, the president may be removed from office by a two-thirds vote of Parliament with the concurrence of the Supreme Court.
In 1999, President Kumaratunga called for early presidential elections, which the Sri Lankan Constitution allows. Her call for elections came one year before the end of her first presidential term in 2000. In December 1999, after winning the election for another six-year term, Kumaratunga was publicly sworn in for her second term. Taking this public swearing-in as the starting point of her second term, observers widely assumed that Kumaratunga's term would run from 1999 to 2005. Kumaratunga's confirmation of a second swearing in ceremony in late 2000 complicated the situation. The Constitution stipulates, that if a president calls for early elections for the second term and wins, the second term begins on the next date that corresponds to the beginning of the first term.
The president may summon, suspend, or end a legislative session and dissolve Parliament. With Parliament's approval, the president appoints the prime minister from the ruling party and in consultation with the prime minister chooses the members of the cabinet. It is the President, rather than the prime minister, who presides over the cabinet's deliberations, and who may assume any ministerial portfolio. The president also has the authority to dissolve Parliament at any time and call for new elections. The president cannot exercise this power, however, if the legislature has been in power for less than a year and does not consent to the dissolution, or if it is considering a resolution to impeach the president.
The 18th Amendment to the Constitution allows a third term. The 18th Amendment was passed by Parliament in September 2010, after President Rajapaksa's election for a second term the same year. It was passed with more than a two-thirds majority in Parliament, and had the approval of the Supreme Court on its legality and compliance with provisions of the Constitution.
Parliament is a unicameral 225-member legislature elected by universal suffrage and proportional representation to a 6-year term. Parliament reserves the power to make all laws. A parliamentary no-confidence vote requires dissolution of the cabinet and the appointment of a new one by the president.
A striking feature of the governmental system is the huge size of cabinets. The Constitution designates twenty-eight minister-level portfolios, including two (the ministries of defense and plan implementation) held by the president. Additional ministers, however, may be appointed to take responsibility for special areas, such as the prevention of terrorism. District ministers, who play a major role in local government, are also designated. Including deputy ministers, a cabinet at one time may have more than eighty members chosen from the parliamentary ranks of the ruling party. In the late 1980s, ministerial rank and the resources made available through access to budgetary funds were, for individual legislators, an invaluable source of patronage and local level influence.
President Mahinda Rajapakse appointed his cabinet on 23 November 2005. With 25 ministers, the new cabinet is slimmer than in the previous administration, with one notable deletion being separate Ministries of Buddhist, Hindu, and Christian Affairs. Rajapakse's cabinet contained 10 fewer posts than the 35 of his predecessor. President Mahinda Rajapaksa's February 2007 cabinet reshuffle served to consolidate his and his brothers' control, particularly over the all-important defense portfolio. The President created a cabinet of 54 ministers and a similar number of deputies, perhaps a record anywhere -- but certainly for a country of only 20 million. The fact that Sri Lanka had one of the largest Cabinets of Ministers in the world, perversely contributed to the centralization of power in the President's hands because many ministers had overlapping or undefined responsibilities.
The 1978 Constitution introduced a radical departure to the previously existing electoral system and electoral districts. The previous system was based on constituencies with individual candidates nominated by recognized political parties or independent candidates. The candidate obtaining the highest number of votes in respect of the constituency was declared elected.
This system, commonly described as the First-past-the-post (FPP) system, was changed in to a system of Proportional Representation in respect of 22 electoral districts. The apportionment of the number of members to be returned from each electoral district is made by the Commissioner of Elections in terms of Article 98 (8) of the Constitution. In all, 196 Members of Parliament are returned on the basis of the voting in the respective electoral districts. The 15 th Amendment to the Constitution introduced Article 99A, which provides for 29 members to be declared elected on the basis of the total number of votes polled by the respective political parties or independent groups at the national level (the National List). Thus, we have a proportional system at the district level and a proportional system at the national level based on the same poll.
The 14th Amendment to the Constitution introduced a system of preferential voting on the basis of which, the particular candidates to be returned from within each political party or independent group is determined. Each voter is entitled to indicate his\her preference within the list of candidates of the political party or group to which the vote is cast. Three such preferences could be indicated on the basis of the number assigned to a particular candidate after the nomination paper is accepted by the Returning Officer. The counting of preference votes takes place at the second stage of the counting process in order to determine the particular candidates who would be declared elected from within each political party or independent group.
Sri Lanka's judiciary consists of a Supreme Court, Court of Appeal, High Court, and a number of subordinate courts. Sri Lanka's legal system reflects diverse cultural influences. Criminal law is fundamentally British. Basic civil law is Roman-Dutch. Laws pertaining to marriage, divorce, and inheritance are communal.
As of 2003 most justices on the eleven member Supreme Court were chosen by President Kumaratunga and were considered her allies. In particular, Chief Justice Sarath Silva was considered to be very close to the president.
Parliament adopted the 17th Amendment to the Sri Lankan Constitution in 2001, intending it to be a significant check on the powers of the Executive President. The 17th Amendment mandates an independent Constitutional Council (CC) responsible for nominating members to key public institutions, thus limiting political interference in the appointment process and promoting good governance. At the time, there was serious concern that then-President Chandrika Kumaratunga was exerting too great an influence over the country's public institutions through politically motivated appointments, transfers, promotions, and disciplinary control of officers of key public bodies.
The 10-member Constitutional Council (CC) served two primary functions: 1) nominate members to important commissions (the Elections Commission, Public Service Commission, National Police Commission, Human Rights Commission, Permanent Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, and Delimitation Commission), who are then appointed by the president. 2) It also approves appointments to key public offices (including auditor general, inspector general, chief justice and judges of the Supreme Court, and the president and judges of the Court of Appeal).
Two successive Executive Presidents, Chandrika Kumaratunga and the incumbent, Mahinda Rajapaksa, circumvented the 17th amendment by refraining from appointing nominees to the CC. President Rajapaksa obstructed the formation of the Council for several years, preferring to make extra-constitutional, direct presidential appointments to several important government bodies.
With the passage of the 18th amendment in September 2010, the mechanism by which the seats on the Constitutional Council and its subsidiary councils are filled was changed. The president now holds the authority to name all members to each of these councils, with only the requirement to "seek advice," but not approval, of the parliament. The now-(in)famous 18th Amendment, is without parallel anywhere in the world of alleged democracies in the matter of Presidential power. The Sri Lanka Freedom Party (SLFP) had obtained two third majority. Mahinda Rajapaksa said in September 2010 that "The constitution should not remain unchanged until the sun and moon exist. The time has come for us to change these things."
Sri Lanka has nine provincial councils. Provincial Councils PCs have limited revenue generating capabilities and are dependent on the central government for funding. Transfers to the PCs do not meet the amount required to fulfill their responsibilities. Corruption remains a widely recognized problem within the PCs. Consequently, PCs are unable to complete their initial goal of implementing local economic development programs. Their duties remain administrative offering little empowerment and political autonomy at the local level.
The provincial councils and their chief minister positions are not very powerful. That would have changed if the GSL and the Tamil Tigers had agreed to form a semi-autonomous set-up in the north/east, which could have led to devolved powers in the rest of the country. The minority Tamil community has often advocated for devolution of power away from the central government. The Tamils see devolution as a small step towards their larger goal of political autonomy in the North and East. The PCs were introduced to the country along with other provisions for political empowerment of Northern and Eastern Tamils, via the 1987 Indo-Lanka Accord. As a consequence, in the eyes of many Sinhalese, the PCs system is linked unfavorably with Indian diplomatic pressure and Tamil demands for autonomy.
In 1985, peace talks were held in Thimpu, the capital of Bhutan. The Thimpu talks were the first set of peace talks held since the advent of the ethnic conflict in 1983. India sponsored the talks. Four principles were placed before the GSL by six Tamil organizations, including the LTTE. The Tamil groups wanted to amend the 1978 Sri Lanka Constitution and its "unitary state" provisions.
Under the Indo-Sri Lankan Accord of July 1987 and the 13th amendment to the constitution, the Government of Sri Lanka agreed to devolve significant authority to the provinces. In addition to Sinhala, Tamil would also be an official language of Sri Lanka with English as a link language. The 13th amendment contained three lists detailing the following matters: the areas of government devolved to the provinces (List I); the powers retained at the center (the Reserved List, or List II); and a Concurrent List (List III) of shared functions which were ultimately controlled by Parliament. Provincial Councils are directly elected for 5-year terms. The leader of the council majority serves as the province's chief minister; a provincial governor is appointed by the president. The councils possess limited powers in education, health, rural development, social services, agriculture, security, and local taxation.
Many of these powers are shared or subject to central government oversight. As a result, the Provincial Councils have never functioned effectively. Devolution proposals under consideration as a means of finding a political solution to the ethnic conflict foresee a strengthening of the Provincial Councils, with greater autonomy from central control. Predating the accord are municipal, urban, and rural councils with limited powers.
In August 1991, under President Premadasa's guidance, a joint parliamentary select committee was established to explore ways of achieving peace and political stability in Sri Lanka. Mangala Moonesinghe, the current Sri Lankan high commissioner to India and then-Sri Lanka Freedom Party (SLFP) MP, was appointed to chair the committee. The interim report of the select committee was released in January 1993. The Tamil parties, including the LTTE, did not endorse the report, complaining that it did not devolve enough powers to a north/east unit. Due to such criticism, the report was never put before Parliament as a bill.
The new People's Alliance (PA) government led by President Kumaratunga held peace talks with the LTTE from late 1994 through early 1995. The government used the talks to discuss the framework of a political solution that provided that elections would be held in the north and east on whether the two areas should be merged. The government's devolution proposals were never fleshed out fully, but it was leaning toward giving a north/east unit at least as many rights, if not more, than were to be given under the terms of the Indo-Sri Lankan Accord and the 13th amendment. In the end, the talks failed, with the LTTE re-commencing the war in April 1995.
After several trial balloons, the PA went on to propose a new devolution package in 1999-2000. Under the devolution proposals, a new constitution was to replace the existing 1978 constitution. Sri Lanka was to be divided into an unspecified number of regions (believed to be 8 or 9) to which Parliament would abdicate major legislative powers plus executive and judicial powers. Two of these regions, the northern and eastern, were to be merged. In August 2000, President Kumaratunga's People's Alliance party presented these proposals to Parliament in a bill. Despite a favorable response from the minority parties, the new constitution was heavily criticized by the then-Opposition United National Party (UNP), which then won the December 2001 parliamentary elections.
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