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Why we are Supporting the 18th Constitutional Amendment

Sep 5, 2010 7:47:16 AM- transcurrents.com

by Rauff Hakeem

The year was 1977. I was an impressionable youngster of seventeen, studying at Royal College. I was in the running for the Best Speaker's contest where the coveted Sir Ponnambalam Ramanathan Prize was on offer. The topic I picked was 'Introduction of the Presidential system to Sri Lanka'. After robustly arguing in favour of J.R. Jayewardene's concept, I won the prize.

More than three decades later, as the leader of a national level political party I find myself doing more or less the same task today. However, contrary to popular belief, there are no prizes or even medals at stake this time. Instead there are many brickbats coming my way, questioning my recent actions and casting doubts about my integrity. A few words by way of explanation, I believe, would not be inappropriate.

Thirty years ago, it was easy to argue in favour of an Executive President. We hadn't suffered the ill-effects of a Presidency. JR appeared to be the saviour who would deliver the country from the economic ruin. It seemed only right that the country should give him a free hand without being constrained by Parliament, even though he commanded an unparalleled five sixths majority in the legislature by then.

We sincerely believed then, with JR being moulded in the best of Westminster traditions, there was no need to incorporate his accountability to Parliament. The rest is history: the United National Party (UNP) passed many constitutional amendments for very parochial political purposes, using and abusing the five-sixths majority at their command. Parliament became subservient to the Executive which started flouting the best principles of good governance.

I have no doubt that if not for the precarious situation the country had plunged into by late 1988 - a burning insurgency in the South and a raging war in the North - JR would himself have sought to amend the Constitution to run for a third term of office. Many have told me that, then Prime Minister Ranasinghe Premadasa actively canvassed grassroots UNP activists against any such attempt!

On the other hand another anecdote I have heard is that of the gracious First Lady of yore, Elena Jayawardene: when some overanxious MPs broached the subject of JR going for a third term, she had politely asked them, " Do you all want Dickie killed?"

In hindsight, what strikes me was how vulnerable a President could be in his second term of office. Both JR and Chandrika Kumaratunga experienced this, the former despite his overwhelming majority in Parliament-and that vulnerability spelt catastrophe to the country. I would therefore argue that however 'invincible' a President may be, a second term in office would have a high propensity for turbulence.

One may argue that the removal of the term limit placed on an incumbent President may pave the way for dynastic politics. However, the reality is that healthy inner party democracy is elusive in most parts of the Third World. In fact, dynastic politics is an endemic feature in our part of the world with India, Pakistan, Bangladesh and Nepal, all having their own dynasties while the Bush dynasty continues to make headlines in the US.To my mind, President Mahinda Rajapaksa is in an unassailable position today.

Yet he is deeply conscious of the polarization between the majority and minority communities that became evident during the recent polls that consolidated his position and that of his party. Therefore, there is a need to insulate him from the customary vulnerability, if he is to embark on a path that would narrow the differences between the majority community and others. Our support to him for the 18th Amendment would in the first instance ensure him a trouble free reign during his second term.

The President being the astute politician that he is, I sincerely hope would be keen to maintain his popularity in the South while making an extra effort to reach out to the minorities to reduce the polarization of the electorate.

It is however a matter of regret that we are jettisoning some of the salutary features of the 17th Amendment. In 1948, the British left behind a system of public administration which was independent and very much insulated from party politics. But retrogressive politicization has now eroded people's confidence in most sectors of the public service and the proposed changes to the 17th Amendment are unlikely to reverse this trend.

I learnt from the President that Opposition Leader Ranil Wickremesinghe was prepared to endorse a viable alternative to the 17th Amendment. The only contentious issue though was the additional member to be nominated by the President to the body that would replace the currently defunct Constitutional Council envisaged by article 41A of the Constitution, where the Speaker would have a casting vote in the event of a stalemate.

I urged the Leader of the Opposition to be pragmatic and suggested that we look at other alternatives which might be useful not as a compromise but at least to limit the discretion of the Executive from abuse of power. I pointed out to the possibility of re-enacting original paragraphs 8 and 9 of Article 155 which were repealed by the UNP government by way of the 10th Amendment in 1986.

These provisions required a resolution passed by a two-thirds majority in Parliament to continue a state of emergency which has already been in operation for ninety consecutive days or ninety days in aggregate within a period of six months. Unfortunately, that suggestion did not find resonance with Mr. Wickremesinghe. I discussed with some of my party seniors about the possibility of proposing this in Parliament but they felt it would be a futile exercise without the backing of the entire Opposition.

Similarly, I have been advocating that the Supreme Court should not be the court of first instance in fundamental rights jurisdiction. When an attempt was made to increase the number of appeal court judges to enable Courts of Appeal to function in the provinces ostensibly to get rid of the mounting backlog of cases, the Leader of the Opposition was willing to concede that. I insisted that as a quid pro quo, original jurisdiction of fundamental rights be vested in the Courts of Appeal. This would have enabled aggrieved litigants to appeal to the Supreme Court. Again, it was not to be.

In strengthening our judicial system, I also believe it would be salutary for us to create a convention where the Executive would consult and be guided by the Bar Association of Sri Lanka and the Chief Justice in the appointment of superior court judges. I recall that the Supreme Court performed a significant role in asserting itself against the Executive during the very challenging periods of emergency rule especially in the late eighties and early nineties. I do hope that the healthy tradition of activism continues in the future.

Our party's decision to support the proposed constitutional amendments had seen me answering many questions about the morality in politics today and the ethicality in supporting the ruling coalition after entering Parliament on the UNP ticket. I have also been questioned as to why I joined a UNP delegation for talks with the President, if I was intending to 'join' the government.

Poaching of MPs is not a practice any Party Leader enjoys. A party joining the government should do so on a voluntary basis and the absence of such voluntariness makes it uncomfortable for both sides. And I must make it absolutely clear that we have not 'joined' the government; we are only supporting a constitutional amendment which we feel would be beneficial to the country at large. In the future, we will decide on our support to the government on similar issues on an 'issue by issue' basis.

A week before I went to meet the President with the UNP, I met the President at his request when he attended Parliament for the Consultative Committee meeting of the Ministry of Defence. I immediately informed the Leader of the Opposition about the contents of my discussion. At that stage, it was increasingly clear that the government was not willing to yield beyond a certain point and our parliamentary colleagues in the opposition were also not willing to compromise.

Therefore, as a party, we had to take a decision and that is what we did. In doing so, we took into consideration the fact that removing the restriction of two terms for the Presidency was not an emotive issue for the masses and the reality that the Opposition had not mobilised sufficient support against it. Even the issue of the 17th Amendment, however significant it may be, is yet to be taken to the grassroots as a political issue.

Hopefully under the new dispensation, we could fine tune some of these amendments by discussion and compromise because it is not desirable to move a constitutional amendment as an 'urgent bill in the national interest'. Sufficient public interest and discussion are indeed necessary and there appears to be an indecent haste in the exercise, which is to be regretted.

There are also other issues that were considered by our party, the Sri Lanka Muslim Congress (SLMC), before deciding to support the proposed amendments. The right of return of Muslim refugees who were forcibly evicted by the Liberation Tigers of Tamil Eelam (LTTE) poses a unique problem.

This issue must be resolved expeditiously for which more funds need to be mobilised, instead of being over-sensitive to non-existent security concerns. We also noted that devolution continues to remain an elusive political dream despite the end of the war.

There is an urgent need for changes in the educational sector to better the prospects of minorities. The electoral reforms that are being envisaged are also a matter of concern because weaker sections of the Sri Lankan community should be ensured representation, instead of reforms being bulldozed through merely because the ruling party possesses the numbers to do so. As a party we felt these issues could be dealt with in a more satisfactory manner if we supported these amendments and reduced the President's susceptibility to electoral pressures.

Besides, the President must now think of pruning his Cabinet and placing the country on the fast track for development. In terms of good governance, we would like to see the reactivation of the Bribery Commission and the Human Rights Commission as priorities. Parliament should oversee public finance; if this is to be meaningful, the opposition should be given some leverage in this exercise.

From a realistic perspective, I concede that a healthy give and take between a strong Government and a weak Opposition maybe too much to ask. Yet, the President could look at the need to restore the credibility of his government vis-a-vis the Aid Donors and other well-meaning friends in the international community. Our support for him, we hope, will convince him that these are needs of the hour.

But I do also hope that the Opposition would not become despondent and that it will not go into hibernation as a result of these constitutional amendments, even though my party and I have decided to support these reforms. It must quickly re-group and get its act together. I say so because, being a democrat, I always believe that a healthy and vibrant Opposition is a sine qua non for any decent democracy.

I know that over the past few days, I have become a favourite subject among cartoonists. Many question my credibility-or the perceived lack of it. However I must point out that I also have the unenviable record of being sacked from the Cabinet once by President Chandrika Kumaratunga in June 2001 and of having resigned from the Cabinet on another occasion, under President Rajapaksa, in December 2007. I have therefore been in the Opposition for a considerable length of time, not because of circumstances but by choice!

I have always been outspoken while being in the Cabinet. In fact, when this government broached the issue of re-introducing criminal defamation laws I was the first to speak against it in Cabinet, when others took some time to summon the courage to do so.

Of course, I am certainly not suggesting that I wish to join the Cabinet now; we as the Sri Lanka Muslim Congress have only decided to support the President and his party in the process of seeing these constitutional reforms through.

My conscience is clear. I know that I have not sought any opportunistic favours. I did not ask for any particular Ministry-as some news reports have outrageously suggested- nor did I make any other demands whatsoever. What I have done is, I believe, in keeping with the best traditions of democracy: opting to take a decision which though unpopular, we as a party believe is the best option available to us.

And, in helping President Mahinda Rajapaksa to secure an additional term of office, we hope that the enticement of a third term will compel him to seek the mantle of a sincere statesman rather than being remembered merely as a clever politician. - courtesy: The Sunday Times -