(This is the text of address by Tamil National Alliance Parliamentarian M. A. Sumanthiran on September 8th 2010 during Parliamentary debate on the 18th amendment to the Constitution)
8 September 2010
I rise to speak to today with a very heavy heart. Not even half a year has passed since I stepped into this assembly for the first time. I did not realize then that I will be participating in a debate such as this; on a Bill that threatens to finally nail the coffin in which democracy of this country had been laid for some time now.
First and foremost, I wish to place on record – for whatever it is worth - our very strong objection to the manner in which this Bill is being rushed through. That in itself is an indictment and an indication of the anxiety of the government to have it passed with little or no public discussion on the matter. Leave a alone discussion – there is no notice to the public and only 24 hours to the supreme court comprising of such exceptionally talented judges who seem to be able to dissect these proposed constitutional amendments with consummate ease and deliver their determination in such short time. In the process though, they seem to have overlooked at least two of their own determinations of the past – those which they had a little more time to deliberate on. I will refer to those in a little while. This House too had no notice of this Bill. Yesterday when I rose to a point of order, and referred to certain clauses in this Bill, the Members of this House did not have a copy of this Bill. The copies were ordered to be distributed after I made those references. If that did not happen yesterday, perhaps we would not have these copies even today!
Although there was general talk of impending constitutional amendments in the public arena, and that removal of the term limits of the President was one of those, no proper intimation was given to anyone of the contents of this Bill. In fact what was given publicity was of an agreement reached between HE the President and the Leader of the Opposition that the Executive Presidency would be abolished and the post of Executive Prime Minister would be introduced in its place.
When and where then did this Bill originate? Was it in the Cabinet – No! The Cabinet of Ministers has certified that this is urgent in the national interest. Can anything be more laughable than that? Did the Cabinet have a copy or even a draft of this Bill? I think not. What the Cabinet certified and what was sent to the Supreme Court were two different versions and this came to light at the hearing in the Supreme Court. For instance, what is now called the Parliamentary Council was called Constitutional Council when it was before the Cabinet. The issue with regard to the removal of the term limit of the President will not be faced by this country at least for another Four years and Two months.
How then can this Bill be “urgent in the national interest” to warrant such indecent haste? Sir, I ask you in all humility: is this House also expected to capitulate and take leave of its senses like the Cabinet and permit the passage of this Bill post-haste? The rush is so intense, that even the special resolution provided in Standing Order 46A designed to by-pass Constitutional requirements, itself, is being avoided, since there is no time to waste to indulge in something that is made for that very purpose! I not think that these maneuvers are becoming of any responsible government. All right-thinking people of this country have condemned this.
The Civil Rights Movement, The Organization of Professional Associations, The Bar Association of Sri Lanka have all warned the government not to resort to the “urgent bill” procedure. Some leading academics have said this yesterday in a statement:
Constitutional reforms, like elections, go to the heart of what it means to be a democracy in the modern-day world. Any changes that are introduced to a country’s constitution should be undertaken after due deliberation and consultation while having at its centre, the will of the People. In a pluralistic society such as Sri Lanka , ascertaining the will of the People can be a time-consuming and complex exercise. While the will of the People must be given due consideration, the essential features of a democracy, such as the rule of law, accountability of the government and transparency must be preserved and promoted through any constitutional reform.
By choosing to amend the constitution through an urgent bill the entire process of reform has been expedited, if not short-circuited, and no room has been left for any kind of public debate let alone public consultation. Under a Constitution that explicitly recognizes the “Sovereignty of the People” that process is not acceptable, especially when no convincing reasons have been given as to the need to expedite this process. Indeed, the most distressing aspect to this whole process is the lack of interest in government ranks on the need to raise awareness, let alone build consensus, among the general public on the need for such urgent reform.
The Bar Association of Sri Lanka, having warned in due time, has again issued a statement this morning, and I quote:
The Bar Association of Sri Lanka is perturbed by the move of the Government to introduce the 18th Amendment to the constitution as an “urgent bill”.
As early as June this year, the bar Council resolved that constitutional Amendments should not be presented as “Urgent Bills” and urged the Government to desist from proposing Constitutional Amendments in the form of “Urgent Bills”.
This position of the Bar Association was communicated to the Government and given wide publicity as well. We regret to note that despite this, the Government is planning to proceed with the proposed 18th Amendment to the Constitution as an “Urgent Bill” to be debated and voted on 08.09.2010.
As the professional body representing all lawyers of this country, we strongly urge the Government not to move this proposed Bill without a fuller public discussion and debate on such an important matter
Needless to say, no right thinking person can condone this, and we unreservedly condemn the government for making a mockery of the hallowed process of constitution-making.
I wish to ask the Honourable Prime Minister: why did you choose to dismiss this wealth of advice from the intelligentsia of this country? There can be only one answer: Fear!
There can be many fears: some may be personal. But there is also the fear that if this is permitted to be discussed in public, it will be roundly rejected. There is room for such fear because the people of this country have repeatedly voted to abolish Executive Presidency; not to bolster it with more powers. In 1994 people gave President Chandrika Bandaranaike Kumaratunga a mandate to abolish Executive Presidency within 6 months. She herself introduced a new draft Constitution to this House in August 2000, seeking to abolish Executive Presidency, but retaining it for her term of office! In 2005, President Mahinda Rajapakse himself sought a mandate to abolish Executive Presidency in Mahinda Chinthana. I have not attended one session of this Parliament in which at least one government member had not referred to the Mahinda Chinthana as their Bible. Will they refer to Mahinda Chinthana today? In Mahinda Chinthana 2 also President Mahinda Rajapakse sought and obtained a mandate to reduce the powers of Executive Presidency. President Mahinda Rajapakse was at the fore-front of the agitation against all anti-democratic moves of the UNP governments, particularly in the 1980s. I am absolutely certain that if President Jayawardena had actually tried to abolish this term limit of the President – a move he seriously contemplated at that time – President Mahinda Rajapakse would have been at the fore-front of an agitation against it. And so I ask the Honourable Prime Minister again: why are you moving against the wishes of your leader and that of your people?
All progressive forces in this country are against the abolition of the term limit of the President. In all civilized jurisdictions that have Executive Presidency have a two-term limit. They have all not less intelligent than us. It is a universal principle that “Power corrupts, and absolute power corrupts absolutely”. Leading academics and jurists have all opined that concentration of power in one individual for too long is detrimental to democracy. Why is it even necessary for me to say this? It is because even such first-principles take a flight out of the window when political office and power ensnares and entraps you.
There is a book that all first years law students of this country study. It is titled: Essays on Administrative Law in Sri Lanka, by G L Peiris, first published in 1980.
"Parliament always enacts legislation on the presumption that the repository of power will act in good faith and reasonably...yet the courts remain responsible for checking the abuse of powers..." (p.309).
Citing Indian case of Mohambaram v. Jayavelu: "There is no such thing as absolute or untrammeled discretion, the nursery of despotic power in a democracy based on the rule of law." (p.310).
Citing Wade and Schwartz: "Every legal power must have legal limits, otherwise there is dictatorship." (p.310).
The Civil Rights Movement has reminded us in its statement that in 1978 when immunity was being conferred on the Executive President, which is unparalleled in the world, the consolation argument was that there was a two term limit on anyone holding the office of President. This amendment that seeks to permit a person to hold the office of President for life also confers immunity for life on that person. This amendment will create this super-human being not only out of the present incumbent. If the next President ascends the throne at a tender age of 30, this will enable him to remain President for life, periodic elections notwithstanding. I wish to ask the Honourable members on the government side: would you have supported such powers to be concentrated on President Jayawardena or President Premadasa? Or are you under the impression that this amendment will give this power only to President Rajapakse, and to no one after him?
And what about my good friend Honourable Vasudeva Nanayakkara? For a brief moment we deluded ourselves into thinking that perhaps the leftists had some conscience left in them. But, alas, they too have gone the way of their departed leader Dr Colvin R de Silva, who having prophesied in 1956 that a single language policy will lead to separatism in this country, was the very person who drafted the 1972 Constitution that gave to Sinhala the status as the only official language for the first time in the Constitution, and as if that was not enough, gave to Buddhism the foremost place to the exception of all other religions. It is perverse to say that we are opposed to this in principle but will vote for it! Principles don’t matter to many people in this country any more. If not will we see this sad spectacle of so many back-stabbings and defections from the UNP? Surely the consideration for this mass movement cannot be principles.
The concern of the TNA is also to do with regard to the other provisions of this Bill. The removal of the term limit of the President is but one line in this 16 page Bill. The other provisions of this Bill are equally, if not more dangerous. The 17th Amendment to the Constitution is the only part of our Constitution which did not have even one vote cast against its passage in Parliament, and has very salutary provisions for good governance and checks and balances against concentration of power. That very part of the Constitution is sought to be nullified by this Bill. The Constitutional Council is abolished and in its place a totally ineffective Parliamentary Council is introduced. This Parliamentary Council does not meet; does not have even a Chairman. Powers of the Election Commission and the National Police Commission are seriously eroded. Even the very limited powers granted by the 13th amendment to the Constitution are being removed by this Bill. This affects the Chapter on devolution, but the Bill has not been referred to the Provincial Councils as mandated by Article 154 G (2) and (3).
Clauses 20 and 22 of the Bill have provisions in respect of matters set out in the Provincial Council List and seeks to amend and/or repeal the provisions with regard to Provincial Public Service Commission and Provincial Police Commission, both of which are referred to in the Ninth Schedule to the Constitution.
The Supreme Court has at least on two previous occasions ruled that such Bills cannot be placed on the Order Paper of Parliament without first complying with the procedural requirements of Articles 154 G (3). I wish to table the two previous determinations of the Supreme Court in this regard, which were recorded in the Hansard:
Supreme Court determination on “Water Services Reform Bill” made on 13.11.2003 clearly holds that a Bill in respect of a matter set out in the Provincial Council List cannot be placed on the Order Paper of Parliament without first complying with the provisions of Article 154 G (3) of the Constitution. This appears in the Hansard of 20th November 2003, Volume 151, No.02;
Supreme Court determination on “Local Authorities (Special Provisions) Bill made on 19.12.2010 also holds that since the said Bill relates to certain matters set out in the Provincial Council List it ought to be referred by HE the President to every Provincial Council as required by Article 154 (G) (3) of the Constitution before it is placed on the Order Paper of Parliament. This appears in the Hansard of 6th January 2009, Volume 180, No.01.
Articles 154 G (2) and (3) of the Constitution are very clear and specific that if such a Bill is not published in the Gazette first and/or not referred to every Provincial Council, then it will not become law. I am now aware that the Supreme Court in this urgent and hurried determination has held that such a procedure was not necessary, forgetting that it has previously determined otherwise. Those were not urgent Bills and the Supreme Court had a little more time to consider the law at that time. This principle is known as per incuriam, which means that the court had ruled in forgetfulness of a relevant provision of law or a precedent. Such rulings are set aside later as a matter of course when court becomes aware of its mistake. This Bill therefore is in danger of being later ruled as not having become law.
Apart for all these legal niceties and technicalities, I wish to address this House on the core issue relating to this Amendment.
TO BE CONTINUED