From UPSC perspective, the following things are important :
Prelims level : Not Much
Mains level : Sri Lankan constitutional issues
After the Rajapaksas’ win in the November 2019 presidential polls and the August 2020 general election, the spotlight has fallen on two key legislations in Sri Lanka’s Constitution.
Sri Lankan amendments in news
- One, the 19th Amendment was passed in 2015 to curb powers of the Executive President, while strengthening Parliament and independent commissions.
- The Rajapaksa government has already drafted and gazetted the 20th Amendment.
- The other legislation under sharp focus is the 13th Amendment passed in 1987, which mandates a measure of power devolution to the provincial councils established to govern the island’s nine provinces.
What is the 13th Amendment?
- It is an outcome of the Indo-Lanka Accord of July 1987, signed by the then PM Rajiv Gandhi and President J.R. Jayawardene, in an attempt to resolve the ethnic conflict and civil war.
- The 13th Amendment, which led to the creation of Provincial Councils, assured a power-sharing arrangement to enable all nine provinces in the country, including Sinhala majority areas, to self-govern.
- Subjects such as education, health, agriculture, housing, land and police are devolved to the provincial administrations.
- But because of restrictions on financial powers and overriding powers given to the President, the provincial administrations have not made much headway.
- In particular, the provisions relating to police and land have never been implemented.
Why is it contentious?
- The 13th Amendment carries considerable baggage from the country’s civil war years. It was opposed vociferously by both Sinhala nationalist parties and the LTTE.
- The opposition within Sri Lanka saw the Accord and the consequent legislation as an imprint of Indian intervention.
- It was widely perceived as an imposition by a neighbour wielding hegemonic influence.
- The Tamil polity, especially its dominant nationalist strain, does not find the 13th Amendment sufficient in its ambit or substance. However, some find it as an important starting point, something to build upon.
Why is it significant?
- Till date, the Amendment represents the only constitutional provision on the settlement of the long-pending Tamil question.
- In addition to assuring a measure of devolution, it is considered part of the few significant gains since the 1980s, in the face of growing Sinhala-Buddhist majoritarianism.
- Critics argue that in a small country, the provinces could be effectively controlled by the Centre.
- The opposition camp also includes those fundamentally opposed to sharing any political power with the Tamil minority.
- All the same, all political camps that vehemently oppose the system have themselves contested in provincial council elections.
- The councils have over time also helped national parties strengthen their grassroots presence and organisational structures.
Mains Paper 2: IR | India & its neighborhood- relations
From UPSC perspective, the following things are important:
Prelims level: Not much
Mains level: Constitutional crisis in Sri Lanka & how it could affect India
New government in Sri Lanka
- Sri Lanka’s fragile process of democratic recovery is in peril
- Sri Lanka’s President Maithripala Sirisena sacked Prime Minister Ranil Wickremesinghe and appointed Mahinda Rajapaksa, his political rival, as the new Prime Minister
- This was done by the President in order to resolve a deepening political dispute between himself and Mr. Wickremesinghe
Impact of this move
- This act has only pushed Sri Lanka into an unprecedented constitutional crisis, beginning a potentially dangerous phase of an on-going three-cornered power struggle among three leaders
- At the centre of the crisis is the lack of clarity as the new Prime Minister seems to have been appointed without a constitutionally valid vacancy for the position
- The sudden developments in Sri Lanka have thrown into uncertainty the few steps that the country finally took this year to address post-war issues of transitional justice and rehabilitation, which it had committed to at the UN Human Rights Council in 2015
- The constitutional provision that Mr. Sirisena has cited in the official letter to Mr. Wickremesinghe does not grant the President authority to remove a Prime Minister from office
- Section 42(4) of the Constitution merely enables the President to appoint a PM
- The President has taken the position that since he is the appointing authority, he also has the implicit power to sack the PM
- Mr. Wickremesinghe has dismissed the constitutional validity of the presidential action and has argued that he still commands a majority in Parliament
- His line of argument is that only Parliament has the constitutionally sanctioned authority to decide whether he could continue in office as PM or not
- It also suggests that as long as there is no no-confidence motion passed in Parliament against him and the cabinet, his position as PM cannot be invalidated by the President at his will
19th Constitutional Amendment
- The argument seems to have derived its salience in the context of the 19th Amendment to Sri Lanka’s Constitution, passed in 2015
- The 19th Amendment has restored the Westminster framework of the relationship between the head of state, the PM, and Parliament
- It curtailed powers of the President under the 1978 Constitution (the original) as well as the 18th Amendment passed in 2010
- Among the presidential powers taken away by the 19th Amendment, which is valid, is the one pertaining to the President’s powers over the PM
- The 19th Amendment, which created a dual executive, made the PM’s position secure from the arbitrary actions of the President
- Thus, the office of the PM falls vacant only under limited circumstances. Death, voluntary resignation, loss of support in Parliament, rejection by Parliament of the budget, and ceasing to be an MP are these circumstances
- Sacking by the President is certainly not in this list
Future of democracy uncertain
- What is in doubt is the constitutionality of a series of actions by Mr Sirisena
- And if they are valid at all, they set a bad precedent for future constitutional governance in Sri Lanka
- Contrary to the letter and spirit of the 19th Amendment, no PM will be secure in his/her position against arbitrary dismissal by the President
- These circumstances also warrant judicial intervention to resolve the constitutional doubt
- The Sri Lankan presidency remains the country’s most powerful office despite the restrictions introduced by the 19th amendment of 2015
- Delhi, which had been openly relieved at Sirisena’s election, should be prepared to deal once again with a politician who describes India as an “elder brother” but appears to derive great pleasure from provoking India-China rivalry
With inputs from editorial: Storm in Colombo
- Religion: Despite the existing constitutional position of providing Buddhism the foremost place, the Supreme Court has called Sri Lanka a secular State
- Suggestion: All religions be given equal status while protecting and fostering Buddhism
- Most controversial: The merger of the Northern and Eastern provinces
- One of its suggestions allows the current structure of nine provinces with constitutional provisions for power- sharing
- The official committee on constitutional reforms in Sri Lanka has not been able to arrive at a consensus while making recommendations on several contentious areas
- These include the nature of state, national flag, religion, merger of provinces and land powers
- In many ways, views of the committee present a microcosm of diversities of views and positions in society
- Flag: The committee favours retaining the present national flag or designing one without any reference to ethnicity, while representing Sri Lankan collective life
- Or framing a new flag symbolising the equality of all ethnic groups
- Nature of the state: The panel has suggested three formulations, one has no reference to unitary or federal
- Another proposal uses the term unitary & talks of multi-tier governance systems
- The official committee on constitutional reforms in Sri Lanka has come up with an exhaustive Bill of Rights
- It also has provisions for curtailment of powers of the office of Governor, a subject that has been of great interest to the Northern and Eastern Provinces
- If the Bill of Rights as proposed by panel is accepted by the country, it would be among the the most modern documents on rights in the world
- It covers 32 types of rights, ranging from right to life (not included in the 1978 Constitution) to freedom of religion to rights of people with diverse sexual and gender identities
- Context: Sri Lanka is in process of drafting a new Constitution
- Background: The 13th Amendment was an outcome of the 1987 India-Sri Lanka accord
- News: CM of Sri Lanka’s Northern Province called upon India to ensure that the spirit behind the 13th Constitutional Amendment be retained in the new Constitution of Sri Lanka
- India could function as the guarantor of Sri Lankan Tamil interests through the 13th Amendment
- Challenge: There had been a perception among sections of Sinhalese that federalism meant separation
- Context: World Bank study on poverty in Sri Lanka
- News: The regions with the highest rate of poverty in Sri Lanka are areas inhabited by Tamils
- Reasons: Lack of access to the labour market and high unemployment rates, particularly among the youth and among educated women
- Future: Implementation of programmes aimed at improving market accessibility, promote entrepreneurship among educated youth and schemes to help ex-combatants and women-headed households
- Context: External Affairs Minister Sushma Swaraj’s recent visit to Sri Lanka
- Background: India and Sri Lanka signed the 1987 Accord, whose outcome was the 13th Amendment
- Issue: Whether and to what extent India should be involved in the Sri Lanka’s ongoing constitutional reform process
- What is India’s stand? – India is pressing that it should be implemented fully.
- What’s in the Amendment? – It paves the way for the establishment of Provincial Councils all over the country
- The Human Rights Watch’s annual report shows that the present Sri Lankan govt took no significant measures to end impunity for security force abuse.
- Earlier, the present govt. initiated a new, more open dialogue with the international community in 2015.
- The govt. had also not yet repealed the draconian Prevention of Terrorism Act.
- Although the pervasive culture of fear is largely gone and positive measures have been adopted.
- But, the previous government’s disastrous restructuring of independent state institutions needs to be fully dismantled.
- The 13th Constitutional Amendment would certainly form part of the basis of constitutional reforms to address the country’s ethnic question.
- The former President said any solution to be worked out should be acceptable to all communities.
- It should embody fundamental freedom with respect to religion, worship, speech and thought and ensure equal opportunities.
- She stressed that alongside accountability, reconciliation programmes are extremely important.
- The 1978 Constitution of Sri Lanka may well become a thing of the past by the middle of next year if the present plan fructifies.
- Govt. has proposed to convert the existing 225-member-strong Parliament into Constitutional Assembly.
- The 1972 Constitution was billed as the country’s first republican Constitution.
- However, the 1978 Constitution, ushered in the system of executive presidency.
- The 19th Constitutional Amendment envisages a dilution of powers of the Executive Presidency and other constitutional reforms in Sri Lanka.
- United Nations High Commissioner for Human Rights Zeid Ra’ad Al Hussein believes that this will bring a renewed hope for democracy and the rule of law.
“The government itself has gone public saying that it could not go the full distance,” Jayampathi Wickramaratne, a constitutional lawyer who was involved in drafting the 19A, said.
If you are talking of percentages the powers of the presidency have been reduced by about 60 to 65%.
- The legislation envisages the dilution of many powers of Executive Presidency, which had been in force since 1978.
- The 225-strong Parliament cleared the Bill with 212 members voting in favour of the legislation. 10 were absent – 1 voted against – 1 abstained.
- Among the important features of the Bill:
- The reduction in the terms of President & Parliament from 6 years to 5 years
- Re-introduction of a 2-term limit that a person can have as President
- The power of President to dissolve Parliament only after 4 1/2 years [unlike one year, as prevalent now]
- The revival of Constitutional Council & the establishment of independent commissions.