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18th Amendment is an insidiously destructive piece of constitution-making

Sep 25, 2010 4:48:44 PM- transcurrents.com

by Dr.A.C.Visvalingam
President -CIMOGG

One hundred and sixty-one Members of Parliament, in their understandable admiration of President Rajapaksa’s leadership in eliminating the LTTE, appear to have taken up the position, by voting for the 18th Amendment ("18A"), that he can consequently be trusted unreservedly with whatever powers he wants to have and that he will not misuse them, for however long he is entrusted with such powers.

Be that as it may, in terms of 18A, the same trust would automatically devolve on the presently unknown persons, some yet to be born, who will successively follow President Rajapaksa when he leaves the scene. The People, whether they like it or not, will have to trust all of them absolutely and irrevocably. The alleged safeguard of having end-of-term elections to test the popularity of Presidents is not worth the paper on which it is written.

As for the MPs who voted for 18A, there is little question that, beforehand, almost every single one of them had not seen or read or understood the wording of this Amendment, which had been kept a closely-guarded secret. Indeed, if the sequence of events is examined, it may be inferred that even most of the members of the Cabinet would not have had the opportunity or time to read it, digest the contents, and discuss possible improvements in the degree of detail that a constitutional amendment requires. Moreover, not one Minister or MP who voted for the Amendment has offered an answer to the question as to how any urgency could have been attributed at present to the issue of permitting additional terms of office for the current President, considering that he will be finishing his second spell only in the latter part of 2016.

Perhaps the most disappointing feature of the 18A exercise for many trusting citizens was the performance of MP Vasudeva Nanayakkara, whom so many of them looked up to earlier as a politician of integrity, and a staunch upholder of good governance and the Rule of Law. He confessed, if one might employ that term, that he had voted for the Amendment for other reasons even though he disagreed with it in principle! It is mind-boggling to work out how a man of rectitude could have voted for something that he disagreed with in principle.

In all the circumstances, the Citizens’ Movement for Good Governance (CIMOGG) is driven relentlessly to conclude that every MP who voted for this Amendment did so solely for the personal rewards he has received or hopes to enjoy in time to come. Furthermore, political aspirants in the President’s party know that there will be no chance in the future of their being nominated or elected as representatives of the People if they do not toe the line laid down for them. They have selfishly and recklessly imperiled the sovereignty of the People of Sri Lanka by compelling all citizens to accept implicitly that every President of the future will be uniformly benevolent, altruistic, transparent, impartial and accountable to the People, as President Rajapaksa is expected by them to be during his remaining period of office.

Although there are nominal provisions in 18A for consultation by Government with the other parties in Parliament, the manner in which this Amendment was hatched and sprung upon the People, leaving no room for their participation, under the guise of requiring virtually instantaneous implementation, leaves us with little reason to treat such provisions as anything but window-dressing. In another exercise in duplicity in the drafting of 18A, the President is supposed to have been made accountable to Parliament. That is, he is required to go to Parliament once in three months. To do what? Presumably to answer question raised by MPs.

From experience, one may surmise that the MPs who voted for this Amendment are not going to ask any embarrassing questions from President Rajapaksa. On the other hand, if the Opposition asks any awkward questions, the President can choose to give an inapposite answer or even remain silent. All he has to do is to ignore uncomfortable queries from any source and carry on as he pleases. For example, what if he decides to disregard Parliament altogether? There is no sanction that can be applied to a President operating in terms of 18A, short of impeachment, which would be even more elusive than bringing the once-promised rice from the moon. The only other weapon that Parliament possesses – namely, the withholding of funds requested by the Executive – is not going to be exercised in practice because of the total control that the President will always be able to exercise over those in the Government party. Can anyone in touch with reality imagine a situation where Parliament is going to refuse President Rajapaksa or a future President such funds as he may demand for any purpose whatever?

Now and in the future, the President for the time being will be able to appoint anybody to any post, especially all the critically important posts in the Executive and the Judiciary. All Ministers, the Attorney General, Inspector General of Police, Secretary to the Treasury, Auditor General, Chairmen of all the "independent" Commissions, Chairmen of the State Banks, the EPF, ETF, all Corporations, Boards, Authorities and State-owned Companies will be appointed at his pleasure. The entire resources of the State will thereby come under the control of the President. Based on the conduct of so many elections in the past, there is no doubt whatever that they will misused by the Government party before, during and after elections to rob the People of the real essence of their much-vaunted franchise.

It does not take a genius to recognise that 18A is an insidiously destructive piece of constitution-making. It successfully undermines Articles 3 and 4 of the Constitution, and will surely and rapidly destroy all democratic institutions and safeguards irretrievably. The aforesaid Articles 3 and 4 state in effect that (a) the People are sovereign and their sovereignty cannot be surrendered to anyone, (b) the Legislative, Executive and Judicial powers of the People shall be exercised by Parliament, the President and the Courts respectively, and (c) the fundamental rights of the People shall be respected, secured and advanced by all the organs of Government. These concepts, which have already been violated grievously, will soon cease to have any meaning.

What about the claim that economic, infrastructural and social development requires a very strong Executive headed by an all-powerful individual? Would any Sri Lankan, given the choice, want to go and take up citizenship in Burma, Libya, North Korea or Zimbabwe, which have such leaders? Have these countries become highly developed by virtue of the supposed advantage of having been subject to long periods of dictatorial leadership? Why do Sri Lankans, including so many prominent personalities, prefer to acquire citizenship or permanent resident status in Australia, Canada, France, Norway, UK and USA, which are not run by dictators? Do they believe that these countries could have achieved better development if they had been led by dictators?

There are those who try to resign themselves and others to their post-18A fate by saying: "Have the grace to accept what we cannot change". CIMOGG’s position is that, if our laws are wrong, there is no way in which responsible citizens can throw up their arms in despair and remain silent. It is their duty to the present and future generations of Sri Lankans to raise their voices against what is autocratic and undemocratic, and to agitate peacefully and persistently to regain their rightful franchise, which can only be achieved by striving for a thorough separation of powers between the Legislature, the Executive and the Judiciary, and not by subjecting Sri Lanka to the dubious mercies of one-man rule.