Explainer: Why India Is Worried About the Implications of Sri Lanka's 20th Amendment

New Delhi: After the Sri Lankan government set the ball rolling for a new constitutional amendment that would remove many of the curbs on presidential power, there have been rising questions on how India, which has remained largely silent, will view the move.

In New Delhi, the main worry is not the provisions of the 20th amendment, but whether the political will demonstrated to remake the constitution means that the constitutional provisions introduced through the 1987 bilateral accord are endangered.

Here is The Wire’s primer to understand the issues at play.

What is the 20th constitutional amendment? 

On September 2, the Sri Lanka government published the draft of the 20th amendment, which kickstarts the legislative process that will replace several provisions of the previous constitutional amendment that sought to put some curbs on presidential powers and introduced independent commissions. This will be the 20th amendment to the constitution introduced 42 years ago by Prime Minister Junius Richard Jayawardene.

Also Read: What Gotabaya’s Presidency Will Mean for Tamil Politics and Development in Sri Lanka

When is it going to be approved?

Sri Lanka’s legislative process provides for members of the public to examine the Bill for two weeks. Thereafter, the Bill can be challenged in the Supreme Court – and the opposition has already expressed its intention to do so. Once the Supreme Court gives its observations, then the Bill can be tabled for passage in parliament for approval by a two-thirds majority.

With the ruling Sri Lanka Podujana Peramuna (SLFP) having been allocated 150 seats (145 first past the post + 5 proportional) in the 225-member parliament, the constitutional amendment Bill is guaranteed a smooth passage.

Why did the government introduce the 20th amendment?

Ever since Gotabaya Rajapaksa swept to power in the November 2019 presidential election, the repeal or at least dilution of some constitutional provisions introduced through the 19th amendment were high on the agenda.

President Rajapaksa said in December 2019 that the 19th amendment was framed as the major impediment in governing the country. “We have to remove this now. For that, we are in need of a strong parliament,” he said. This narrative got some resonance due to the openly dysfunctional relationship between the previous president Maithripala Sirisena and prime minister Ranil Wickremesinghe which paralysed major governance programmes and caused political instability.

The SLPP leaders also claimed that the intention of the 19th amendment was mala fide, as it was largely legislated to target the Rajapaksa family.

During the parliamentary election campaign, the ruling party’s prime ministerial candidate Mahinda Rajapaksa repeatedly called for the repeal of the 19th amendment to allow for a “strong government”, which he said would enable the president to continue his policy statement and put the economy on the right track. The reference to a “strong government” is usually a euphemism to reduce constitutional controls on exercise of power.

Was the 19th amendment politically motivated?

The building blocks of the 19th amendment was laid by the shock victory of Maithripala Sirisena in January 2015 presidential elections. A former cabinet minister under Mahinda Rajapaksa’s presidency, he was propped up by a coalition of parties who came together with the sole aim of taking on the powerful political family. With constitutional reforms as the top priority in their manifesto, the electoral triumph was perceived to have provided a mandate to the government to tackle issues of politicisation of institutions, nepotism, corruption and the centralisation of power that occurred during the 15 years of Mahinda Rajapaksa’s rule.

According to observers, the 19th amendment was one of the main achievements of the 100-day programme of the new government. Even though President Sirisena talked of abolishing the presidential system, coalition politics meant that there had to be an accommodation of differing views within the parties.

Further, his government was a minority one at that time, since parliamentary elections would only be held in August 2015. This meant that the 19th amendment required the support of the opposition SLFP, large parts of whom were Rajapaksa loyalists, to obtain the necessary two-thirds majority.

The Sri Lankan Supreme Court had already ruled as part of the pre-legislative scrutiny of the Bill that certain portions that deal with executive powers of the presidency – for example, the right to appoint cabinets – would require approval through a referendum. In order to expedite the passage, the government dropped those provisions.

In the end, the amendment was passed with the support of 212 members, but only after an intense bout of backroom negotiations that substantially diluted several of the more reformist clauses.

Why did the SLFP support the 19th amendment in 2015?

In an article in Groundviews, Sri Lankan law professor Kalana Senaratne wrote that there were several reasons for the SLFP to vote for the 19th amendment. The first was, of course, the blow from their defeat, which did not give much space to the party and the Rajapaksa family to oppose the reforms.

Further, the reforms also had the vocal support of influential members of the clergy, especially Maduluwawe Sobitha Thero who had brought together the coalition. Sirisena was, after all, one of their men who had crossed over. If the amendment had not passed, it would have been only due to the Rajapaksas, as they continued to have large scale support from parliamentarians.

Senaratne writes that reading the parliamentary debate transcripts, the major concern among the Rajapaksa loyalists was that it would be used by Prime Minister Wickremesinghe to increase his powers.

Also Read: Sri Lanka Elections: The SLPP’s Formidable Majority Doesn’t Bode Well for Pluralism

How does the 20th amendment compare to the 19th?

It is much easier to mention the changes brought in the 19th amendment which the draft 20th amendment intends not to remove. Provisions such as a five-year term for the president and a two-term limit have remained. So has the right of access to information, which was enshrined as article 14A in the Sri Lankan constitution.

Besides that, most of the provisions brought by the 19th amendment will be swept away if the current amendment is passed. The provision of full immunity to the president will be restored. The constitutional council, which had the right to approve several key appointments, will be turned into an advisory body, with the composition changed to have only members of parliament. It also allows dual citizens to stand for presidential elections and reduces the age limit of candidates to 30. Both of these qualifications were perceived to have been introduced in the 19th amendment to constrain Rajapaksa family members.

Would the international community be concerned with the repeal of provisions brought by the 19th amendment?

There is not likely to be any official reaction to the new amendment as it is technically an internal legislative process. However, these developments will be closely monitored for indications of the government’s policy direction.

After the Sirisena government came into power, the United Nations Human Rights Council passed a resolution in October 2015, with support of Colombo, that called for a probe of war crimes by the Sri Lankan security forces and LTTE during the civil war.

The resolution, in its preamble, noted “with interest” the passage and operationalisation of the 19th amendment to the “Constitution of Sri Lanka and its contributions to promoting democratic governance and independent oversight of key institutions, including the provision on promotion of national reconciliation and integration as among the Constitutional duties of the President of Sri Lanka”.

An analysis in the Daily Financial Times says this paragraph was included to bolster Colombo’s argument that “the 19th amendment strengthened Sri Lanka’s ability to deal with accountability related issues”. The reference to “constitutional duties” of the president was apparently part of Sri Lanka’s proposals at the drafting stage of the resolution.

After Gotabaya Rajapaksa came to power, he announced his intention to withdraw from this resolution, which was formally conveyed in February this year.

When his brother Mahinda Rajapaksa was in power, there was no love lost between Colombo and the western countries, most of whom were concerned at the lack of progress in post-war reconciliation and the country’s increasing alignment with China.

The wariness among the western countries about the new Rajapaksa regime remains, but there will not be an immediate reaction. One of the key ways to express their disenchantment was to bring resolutions against Sri Lanka in the UNHRC, which did not occur in the past five years.

The report on Sri Lanka by the Office of the United Nations Human Rights Commissioner (OHCHR)  tabled at the 43rd session in February this year referred to 19th amendment’s “fundamental importance” in strengthening “independence of key institutions and provided checks and balances against the executive”. The OHCHR had also pointed out “signalled its intention to repeal or revise this important constitutional guarantee if it achieves the required parliamentary majority”. In earlier reports submitted to the UNHRC, UN human rights chief had pointedly welcomed the 19th amendment.

Is India worried about the 20th amendment Bill?

There has been no official statement from India – and neither is there likely to be one. No statement was also given when the 19th amendment was approved, as these are entirely internal legislative processes.

However, New Delhi is certainly watching the developments, which are not entirely surprising, as they have repeatedly been pronounced by the Sri Lankan government since last year. The provisions of the 20th amendment also clearly manifest the nationalist Sinhalese sentiments that have given the mandate to the Rajapaksas – and therefore, crucial in decoding the long-term direction of the country.

The only ‘surprise’ is, perhaps, the haste with which the Sri Lankan government has moved to remove the remnants of the 19th amendment after winning the two-thirds majority in the parliamentary elections. For now, the capacity of civil society and the opposition to mount a strong protest, even if ultimately futile, would be watched carefully in foreign capitals.

In fact, more than the 20th amendment, Indian observers are scrutinising the reason behind the government quickly setting up an experts’ committee to draft an entirely new constitution.

Does it mean that New Delhi is more concerned about the drafting of the constitution?

Yes. The urgency shown to overhaul the constitution, when the key constraints on presidential executive power would be removed by the 20th amendment, is raising eyebrows. “With this 20A serving the purpose of the new regime, there’s hardly a need now for a new Constitution, other than to look into 13A (Provincial Councils) and electoral reforms,” pointed out Sri Lankan newspaper, Sunday Times in an editorial.

It was referring to the 13th constitutional amendment, which was a result of the 1987 India-Sri Lanka accord that was supposed to be a solution to meet the aspirations of the Sri Lankan Tamils. It led eventually to the creation of provincial councils, but the implementation has been moth-eaten. While councils did get some powers, the Sri Lankan government has not handed over the powers of police and land from the Centre’s portfolio.

When Prime Minister Mahinda Rajapaksa visited India in February, Prime Minister Narendra Modi reiterated that Sri Lanka needs to complete the implementation of the 13th amendment.

During that visit, Mahinda Rajapaksa did not categorically commit to it. In an interview with The Hindu, he stated that the demands of the Tamil National Alliance (TNA) for full implementation will not be accepted by the majority Sinhala community. “We want to go forward, but we need to have someone to discuss, who can take responsibility for the [Tamil] areas. So the best thing is to hold elections, and then ask for their representatives to come and discuss the future with us”.

Since then, voices in Colombo have only grown louder to remove clauses of 13A. From ministers to ruling party politicos, the repeated refrain has been that provincial councils have not been of much help. Instead, the narrative has been that local bodies should be empowered.

After a former Naval officer, Sarath Weeraserkara was sworn in as minister in charge of provincial councils and local government, he stated, “I was someone who vehemently opposed the 13A and for me to be given this Ministry, I consider this “Destiny”! Until clauses detrimental to the sovereignty and territorial Integrity of #SriLanka, are reviewed and revised, no Police or Land Powers will be delegated to the PCs”.

He further went on to call for the abolition of provincial councils, terming it as a “burden” that was “forced down upon us by the Indians, at virtual gunpoint”. At another forum, the minister said that “his primary duty” was to ascertain whether the provincial council should be continued, declaring it a threat to the unity of the country.

When the 20th amendment was unveiled last week, one of the questions at the government’s media briefing was about the fate of the provincial councils. While the government co-spokesperson Udaya Gammanpila said that there has been no discussion in the cabinet, he added that the experts’ committee will study it in length. The panel members would also opine “whether the Indo-Sri Lanka Agreement of 1987 is still active or not and whether the government is bound to such matters are legal issues”.

The TNA has already been vocal about their concerns about the 13A, with a delegation meeting with the Indian high commissioner to Sri Lanka, Gopal Baglay, on August 21. A tweet from the Indian mission after the meeting reiterated New Delhi’s “long standing position” on the full implementation of the 13th amendment.

Even if the Sri Lankan government only moves forward with diluting the powers of the provincial councils, rather than complete abolition, India will have to carefully weigh its response. Unlike the 20th amendment, New Delhi may not be able to remain silent. As one of the stakeholders in the devolution and accountability process in Sri Lanka, by virtue of the bilateral agreement, India’s response to any dilution of the 13th amendment will be much anticipated. 

If the western countries do bring a resolution before the UNHRC in February-March 2021, it will be interesting to note whether New Delhi will work behind the scenes to dilute the draft (as it has done in the past), or keeps it counsel to itself.