By Kalana Senaratne
The 18th Amendment to the Constitution makes it clear that Sri Lanka, after the end of a brutal armed conflict, is moving in the wrong direction. It is also clear that President Mahinda Rajapaksa, as a leader, has got his national priorities mixed up, and this too, rather wittingly.
The people of Sri Lanka were in need of a ‘national reawakening’; amendments to the Constitution were essential, but amendments which further promoted democracy and good governance. What they have got instead is a more powerful President, who now has firm and total constitutional control over some of the most important public services and institutions of the country. Two basic features of the 18th Amendment make this all too clear:
removal of the two-term limit of a President, and the creation of a largely impotent Parliamentary Committee which replaces the Constitutional Council established under the 17th Amendment.
While the office of the executive president may have played a useful role especially during the last phase of the armed conflict, it was quite clear ever since 1978 that the executive presidency was not the kind of political office which did much good for the country. It was the creation of a man who had dictatorial tendencies, and the enormous powers attributed to the President which gave rise to authoritarian rule in the country went against all norms of democracy and good governance promoted by the Buddhist philosophy. Curiously, it is this same document which creates an undemocratic, unaccountable and authoritarian leader that also gives foremost place to the peaceful and sublime teachings of the Buddha (Chapter II, Article 9).
Given the damage successive executive presidents had caused over the years, there were two options before President Rajapaksa, especially after May 2009. Firstly, it was to totally abolish the executive presidency. As Judge CG Weeramantry, former judge of the World Court, once noted: “A Sri Lanka which aims at being a stable democracy needs to avoid the temptations towards authoritarian rule which are inherent in the concept of executive presidency. This should rank high in the list of proposed reforms.”
Secondly, if total abolition was not possible, then, amendments which reduced some of the powers of the President should have been introduced, which would have made him more accountable to Parliament, the Judiciary, and the people. After all, it was President Rajapaksa who promised that he would convert the executive presidency into a ‘trusteeship’, by making it more accountable to Parliament and the Judiciary (see Mahinda Chintanaya: Vision for the Future, 2010, p. 56).
Those were the options available and the basic nature of the reforms that were required (reforms, which had been promised to the people by so many leaders on so many occasions before). If then, even a school child would understand that the removal of the two-term limit of the President is a classic case of misplaced priorities. Unfortunately, President Rajapaksa seemed to have known what he was going to do, for it was not yesterday, but some months ago, that he told Al-Jazeera during the first international interview since the end of the conflict:
“I am going to win again”. The intention was clear. To win again, there had to be the removal of the two-term limit. The 18th Amendment, therefore, fulfills his desire and even the (unquenchable?) thirst for power. That temptation towards authoritarian rule seems to be continuing.
Amending the 17thAmendment
Now, the removal of the two-term limit would have still been fine (at least theoretically), had the 18th Amendment simultaneously reduced certain powers of the President; just as the 17th Amendment aimed to do. But sadly, it is precisely the opposite which the 18th Amendment aims to do. The two-term limit is removed, and more Presidential powers are introduced.
Firstly, the provision in the 18th Amendment which states that the President shall “attend Parliament once in every three months” does not essentially suggest that the President will be more accountable to Parliament or the people. One still does not know what the President ought to do after attending Parliament. It is said that he has the right to “address and send messages to Parliament.” But then, will he exercise that right? What if he decides to simply attend Parliament, and watch Parliamentary proceedings where his message will be read out by the Prime Minister?
If real accountability was to be ensured, he should actively engage in Parliamentary proceedings and be involved in some form of active debate and discussion. The 18th Amendment does not do this. It is not surprising. Given the popular Sri Lankan trait of ‘cringing before superiors’, such a scenario where Members of Parliament can question the President of the country is unimaginable, unthinkable.
Secondly, in amending the 17th Amendment, what the 18th Amendment has done is to take away all the powers of the Constitutional Council and thereby crush the fundamental purpose of the 17th Amendment; i.e. the reduction of Presidential powers concerning the appointments made to some of the important high posts in the country.
The ‘workability’ of the 17th Amendment gave rise to a number of problems, and the 17th Amendment was not by any means a perfect document in that regard. But if, as the government claims, the problem was with the ‘workability’ of the 17th Amendment and the complexity surrounding the functioning of the Constitutional Council (CC), the answer to that is to make the functioning of the body less complex whilst ensuring that the fundamental purpose of the 17th Amendment is retained.
Instead, the 18th Amendment creates a Parliamentary Committee (PC) which is less complex; but having done that, it reduces the powers of that PC to such an extent that it becomes an utterly impotent mechanism in terms of curtailing the powers of the President. Consider the enormous difference between the powers of the new PC and the powers of the old CC. Under the 18th Amendment, the President only needs to “seek the observations” of the PC concerning the relevant appointments (and such observations have to be communicated within one week);
whereas earlier, under the 17th Amendment, the President could only make appointments “on the recommendation” of the CC (as per Article 41B, concerning posts listed in the Schedule under 41B), or else, only if the appointments had been “approved” by the CC (as per Article 41C, concerning posts listed in the Schedule under 41C). It is clear then that the fundamental purpose of the 18th Amendment is to give absolute control and power to the President over the appointments to some of the most important high posts (which include appointments to several key Commissions and other posts such as the Chief Justice, the Attorney General, the IGP etc., etc.)
In any case, the President has the additional advantage of being able to ensure that 3 of the 5 members of the new PC are from the Government or its main political party (i.e. the Speaker, the Prime Minister, and the nominee of the Prime Minister). In that sense, it is clear that under the pretext of this argument of ‘workability’, the present regime has introduced a ‘workable’ mechanism which does not address a national ‘post-war’ priority – viz, the reduction of Presidential powers and the strengthening of independent institutions.
The implications arising from the 18th Amendment are serious. There is, now, firm constitutional and legal control over the public service and the judiciary; not just de-facto control. This, in turn, affects the public perception regarding some of the most important institutions in the country which had to remain independent, and thereby erodes public confidence.
The promotion of equality of citizenship is also threatened, and this seriously hampers efforts made at ensuring a greater degree of ethnic reconciliation. The problems surrounding the promotion and protection of human rights, in particular, have not been addressed, since the vital mechanisms which would guarantee such independent and impartial human rights investigations and inquiries are firmly under the control of the President.
Given the absence of a democratic and popular alternative to the undemocratic form of government that is being further strengthened and promoted by the current regime, it is difficult to imagine what, and how long, it would take to address these problems in any meaningful and peaceful manner in the future.