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A govt viewpoint on why the 18th Amendment to the Constitution is necessary

Sep 10, 2010 10:26:41 PM- transcurrents.com

by Mahinda Samarasinghe

(Text of the speech by Plantation Industries Minister Mahinda Samarasinghe during the debate on the 18th Amendment to the Constitution Bill in Parliament on September 8 )

The attention of this August assembly is focused on an important item of legislation. It is my privilege to commend this Bill for the Amendment of the Constitution, also known as the 18th Amendment to the Constitution to the Members of this House. The use of several inflammatory and emotive words and scare mongering has characterized the public debate regarding this legislation.

Words and phrases like ‘dictatorship’, ‘authoritarianism’, interfering with the will of the elected representatives of the people; undermining the separation of powers; manipulating the Parliamentary process; giving unfettered power to the President; undermining free and fair elections as well as the independence of independent commissions; and all manner of imagined evils, are threatened and predicted as outcomes of this legislation.

However, anyone with a modicum of common sense, knowledge of the history of this legislation and a touch of fair-minded and impartial ability to analyze it, will realize what is factual. Those who seek to generate public trepidation and Opposition to the Amendment have consistently sought to undermine confidence in this administration and the one immediately preceding it - both led by the President. They do this for reasons known only to themselves and those who command them. Nevertheless, I am confident that the intelligent and erudite Members of this House, who represent a literate and mature electorate and a people, are able to separate inescapable fact from insidious fiction and exercise sober and astute judgement and vote accordingly. The fact that so many Members have openly declared their support to this measure is, in itself, an indication that these agents of fear and discord are largely unsuccessful in their attempts to mislead and confuse the issues.

People’s choice

One of the aspects of this Bill which its opponents seek to portray as controversial is the removal of the two-term limit that hitherto has been attached to the Presidency. The proposed removal of this limit has been criticized as undemocratic. This is the complete opposite of the truth. This is especially the case in a relatively mature democracy such as Sri Lanka. We are quite capable as a people of changing our leaders and Governments democratically and periodically. We have proven this over and over again. A two-term President presenting himself at a third Presidential ballot will have to convince the people that he is a deserving candidate among all the other candidates.

The people will have a wider choice as to who they want to lead the country. The people, ultimately, will decide upon their preferred choice. This is the pith and substance of democracy.

How then, can this be characterized as undemocratic or tending towards authoritarianism? One outstanding example from relatively recent memory is the case of President Franklin D Roosevelt of the United States. Despite an informal tradition of a two-term limit from the time of President George Washington, FDR - as he is popularly known - died in office while commencing a fourth-term. It is commonly known that FDR led the United States through some of the most difficult periods in its modern history - the recovery from the Great Depression and World War II.

The legislative intervention by Congress to formalize the original informal two-term limit was only made in 1951, six-years after this death in 1945. No one claimed that it was to forestall a slow decent into dictatorship in the United States. In Parliamentary democracies, no one insinuates that a Premier who wins consecutive terms - time and again is tending towards authoritarianism. Some Prime Ministers are indeed thought to exercise ‘Presidential style’ governance and wield an enormous quantum of power and authority.

Humanitarian effort

We are fortunate to have a President who has the ability and the will to lead us through great adversity. He has proven himself in the few years since he took office. He led us though the armed operations against terrorism and the massive humanitarian effort.

He led us through a global economic crisis all but unscathed. He has accelerated, initiated and put in place islandwide development initiatives that will make us the emerging wonder of Asia.

If the people wish to continue to repose their faith in his leadership and reap the obvious rewards for a longer period, who are we to stand in their way by continuing to maintain an arbitrary time limit on the Presidency?

Members of this House have received the determination of the Supreme Court made in terms of Article 122 of the Constitution of Sri Lanka. The Apex Court has determined that the Bill may be passed by a special majority of this House. It has determined that a referendum in terms of Article 83 of the Constitution is not warranted. The learned Justices of the Supreme Court have heard several strands of opinion and have determined on the basis of law and the Constitution, that this Bill is consistent with the Constitution. The Justices of the Court have made their determination based on dispassionate assessment of the arguments made before them. They are not swayed by political rhetoric and exaggerations of interested parties interested in impeding the passage of this Bill. They are guided by considerations of legality, justice and reason. We should all respect the opinion of the learned Justices who have determined that the inalienable sovereignty of the people as given expression to in Articles 3 and 4 the Constitution is not infringed by the proposed removal of the time-limit on the Presidency.

Another argument that is sought to be made out by the opponents of this Bill is that the President’s presence in Parliament on a regular basis and the conferment of the right to communicate with the legislature is somehow a diminution of sovereignty of the people. Indeed the Supreme Court’s determination accepts that such a measure enhances accountability to the people “in a more meaningful manner.” Those determined to give this salutary step a negative twist have alleged that this is an interference with the legislature. Nothing could be further from the truth.

Difficult issues

We, the elected representatives of the Sovereign Sri Lankan people constituting this seventh Parliament of Sri Lanka, are also concerned today with righting a historic mistake. Several colleagues in Government, analysts, experts and writers have pointed out that the Supreme Court of this country, in the course of its determination on the 17th Amendment to the Constitution in terms of Article 122 (1), expressed a degree of reservation as to the pragmatism and practicality of a flawed but nonetheless well-intentioned legislative act in 2001.

Seventeenth Amendment

This was especially so because that Court probably realized the nature of politics as engaged in Sri Lanka and the difficulties that could be encountered in forging a consensus on critical albeit difficult issues.

It must be recalled that the intervention in 2001 by the legislature arose out of the unique political circumstances and relationships characteristic of that bygone era.

It sought to address a perceived problem in a hasty, unfocused and ill-conceived manner. No less a luminary than the late Justice K M M B Kulatunga in a web-published article in December 2001 called for the correction of ‘defects and shortcomings’ by further amendment and said that until these defects were rectified, the 17th Amendment should not be implemented.

In 2002 a Bill - the 18th Amendment to the Constitution - was presented seeking to supplement and amend certain aspects of the flawed 17th Amendment, but that was not proceeded with after a constitutional challenge in the Supreme Court.

Another learned administrator of repute was quoted in 2004 as stating: “The 17th Amendment was regarded as a salutary injection of good governance into the polity of Sri Lanka. Some even regarded it as the panacea for all that was evil in the governing processes. However, the speed with which it was drafted and the haste in which it was rushed through Parliament left many a flaw, that has up to now not been highlighted.” Latterly, my Cabinet colleague, the former Constitutional Affairs Minister, worked on evolving a consensus position on changes to the 17th Amendment but that effort also did not come to fruition.

This is only brief recapitulation of some significant events caused by the enactment and attempted implementation of this misguided and hasty attempt at constitutional tinkering. Many of us in this August House were responsible for the unanimous passage of that legislation.

We must display the maturity and strength of character today to admit that an error was made and demonstrate that we have the means and the determination to carry through the Amendment before us today.

It is heartening to note that there are many in this House who have pledged support for it in a bipartisan spirit for the good of the country and her people.

Government Departments

We must remember, that in the period during which we experienced a deadlock in appointing the unwieldy and unrepresentative Constitutional Council, the functioning of several institutions and offices were potentially placed in jeopardy. It took courage, backed by a clear recognition of the need of the hour, to take resolute steps to keep those institutions functioning.

These are not mere Government Departments or statutory bodies, these institutions are critical to the maintenance of democracy, peace, justice, law and order, human rights and good Government.

President Mahinda Rajapaksa demonstrated the required strength of purpose and courage in full measure.

He took steps where necessary to keep these institutions functioning, their staff usefully employed in serving the people and ensuring that the critical services provided were continuously available to all Sri Lankans.

All this, while leading the country in a victorious battle for its very life and soul against forces of terrorism.

He is now leading us forward into a new era of peace, development, prosperity and equality of opportunity for all. Not one of the bodies are being jettisoned. They all remain intact. They will continue to provide the backbone of our system of governance.

Political interest

What is proposed today before this House, is neither more nor less than a practical response to a burning need.

We need these institutions and offices to take us forward. However, at the same time, we need practical means to ensure that appointments are duly made and these bodies function effectively for the betterment of the country.

It is incumbent on us - elected representatives of the Sri Lankan people - to ensure that the best possible and most practical constitutional arrangements are in place to ensure our progression towards a better future for all.

It is a cardinal principle that Parliaments do not bind their successors. We therefore have the authority, the ability and the mandate to undo any past mistakes.

This is a sacred responsibility that is thrust on us. We must not shirk it and we must not allow narrow parochial or political interests to deter us from our mission on the people’s behalf.

The Supreme Court has reaffirmed that the exercise of the executive power of the people resides in the Presidency.

The provisions relating to the Constitutional Council have been consistently recognized by the Court as directory and not mandatory.

To do otherwise, would have necessitated the 17th Amendment being placed before the people at a Referendum in 2001 for its passage.

While not intending to dwell at length on the legal arguments advanced in Court, it is clear that the executive power of the people always resided in the President and the 17th Amendment did not divest the President of that power.

Similarly, with regard to the Public Service, the powers of the Cabinet of Ministers to determine policy and to make appointments of departmental heads will be restored to the position that existed before the 17th Amendment.

It is also pertinent to note that the alleged infringement of the powers of franchise urged by those opposed to the Bill has not found favour with the Court which has emphasized the necessary balance to be struck between the powers of the Elections Commission and other Commissions such as the Judicial and Public Service Commissions.

Similarly the National Police Commission has had its role redefined has the Police Service will be brought within the ambit of the Public Service Commission.

Several other arguments adduced also failed to convince the Supreme Court of the merit in the claims of the petitioners.

In this context, it is my submission there is no impediment to this House passing this Bill and I urge Members to support this Bill and the process of national renewal that we have undertaken under the leadership of the President.

To those who continue to protest, as long as they are peaceful and do not infringe upon the rights of others, they are perfectly at liberty to express their views in a display of democratic dissent. This is what happens in a democracy and I can only expect that their protestations will be democratic.

I only hope by their actions that their story is not remembered in same terms as the characterization of life by Shakespeare's Macbeth as "..... a tale/Told by an idiot, full of sound and fury,/ Signifying nothing.