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Some Reflections on the Twentieth Amendment Bill

Sep 21, 2020 11:57:10 PM - groundviews.org

Photo courtesy of Blue Lanka Tours

As the Twentieth Amendment Bill is brought before Parliament – and challenged in the Supreme Court – there are two critical sets of questions we need to seriously consider. These are, firstly, how will the Bill once passed change the nature of Sri Lanka’s constitutional democracy, and secondly, does the government have a mandate to make these changes? There reflections build upon the preliminary assessment of the Bill I have offered elsewhere. A comprehensive comparison of the current provisions of the Constitution with those of the Bill is found here.

How will the Twentieth Amendment Change Constitutional Democracy?

The changes proposed in the Bill will change the character and quality of Sri Lankan constitutional democracy for the worse, possibly even to the point of destruction. In order to sustain this assertion, we need to start with a key conceptual point. A constitutional democracy is the type of government that balances two central competing ideas: ‘consent’ and ‘constraints’. Consent refers to the idea of popular sovereignty; constraints refer to the idea of government limited by laws of general application.

States based on the concept of popular sovereignty hold that governments that are periodically elected to serve the public, and the more permanent constitutional arrangements through which government itself is established, must be founded on the freely expressed consent of the majority of the population. In order for a democracy to be regarded as a constitutional democracy, this principle of majoritarian rule must be balanced by the constraints that are imposed by the constitution and the rule of law. It is only when both these features are present that we can call a country a constitutional democracy.

In the written constitutions of modern constitutional democracies, these two fundamental principles are given effect through a number of common devices. One is the separation of powers between the three major branches of the state. Another is the declaration and protection of core fundamental rights that ordinary laws, as expressions of a temporary majoritarian will, cannot normally override. The third – and one of the least understood factors in Sri Lankan debates – is that consent and constraints underpin the design of executives in systems of government; differently in presidential or parliamentary democracies, but with the same underlying goals in mind. These establish internal checks on executive power over and beyond the tripartite separation through which the executive is held accountable to the legislature and the judiciary.

Thus, for example, in the logic of our system understood in the best possible light, the popularly elected President must exercise his executive powers together with the Prime Minister and the Cabinet, with an independent and professional public service, with the Constitutional Council, and with the independent commissions. These constraints internal to the executive must be present for any presidential system to remain a constitutional democracy. If they are absent, or are to be dismantled as the Twentieth Amendment Bill proposes, the less democratic that system will be.

The central problem with the Twentieth Amendment is that it attacks both cardinal principles of constitutional democracy. By removing virtually every established constitutional limit on the powers of the executive presidency, it attacks the idea of constraints. The system of unlimited rule by one person it will introduce is not an expression of popular sovereignty, but the cession or alienation of sovereignty from the people to the will of one person.

It is by articulating this conceptual basis of what is required by constitutional democracy that we can assess and understand the potential effects of the Twentieth Amendment Bill. How the Bill adversely impacts on constitutional democracy, and instead promotes unlimited and arbitrary government, can be demonstrated across four facets of institutional relations in the new system of government it proposes to establish.

Within the Executive

The political executive will no longer be an institution of shared power between the President, and the Prime Minister and Cabinet. The Prime Minister and Cabinet will become mere servants of the President, not collegial members of the senior political executive of the country. The restriction on the President holding ministerial portfolios will be removed. The restriction on the number of Cabinet and non-cabinet ministers will also be removed. The cumulative effect of all these changes will be to promote ministerial servility to the President, and reinforce the will of one person over the whole political executive. The current President has already shown a preference for ruling through legally questionable ad hoc bodies such as presidential task forces, appointed without any requirement of transparency and consultation. The weakening of the Prime Minister and the Cabinet will buttress this type of authoritarian governing practice.

Key state officials and independent commissions will no longer have the security of appointment by an independent process overseen by the multiparty Constitutional Council. The Parliamentary Council, which is to be re-established in its place, cannot constraint the President because its observations on appointments are not binding. Officials in the public service, in the administration of justice, and in the electoral, human rights, and public financial accountability institutions, will have every incentive to serve the dictates of the President rather than the public interest.

Between Executive and Parliament

The constraint that Parliament cannot be unilaterally dissolved by the President for four and a half years of its five-year term is removed. The President will be able to dissolve Parliament, entirely at his own discretion, after the first year of its term. By giving such an unconstrained power to the President, any Parliament that thwarts the will of the President can be brought to heel by the threat of dissolution. Elections are an expensive business and few MPs will relish the prospect of early elections; the incentive then will be to conform with the wishes of the President. In this way, the most democratically representative of the central institutions of the Sri Lankan state will be suborned to the will of one person.

There is a second way that Parliament’s constitutional role in holding the executive to account can be undermined in the new framework. The removal of the cap on the number of ministers permits the President to appoint large numbers of MPs to ministerial positions. In this way the President can certainly buy the loyalty of MPs within his coalition, and it may even be a way to co-opt opposition MPs. In a political culture in which patronage distribution in the form of ministerial appointments is already a serious problem, this change will again remove any incentive MPs have to fulfil their constitutional role and instead create a corrupt marketplace for the exchange of patronage and the evisceration of dissent.

Between the Executive and the Courts

The Twentieth Amendment Bill removes the limited but important principle that the President’s official actions can be challenged by recourse to the fundamental rights jurisdiction of the Supreme Court. This is a limited but proportionate and effective mechanism of ensuring the legal accountability of the President. Removing this mechanism is a clear signification that the post-Twentieth Amendment President is intended to be above the law.

The most senior judges of the country – the judges of the Supreme Court and the Court of Appeal – will be appointed by the President subject only to the non-binding observations of the Parliamentary Council. In effect, this does not serve as any meaningful constraint on the presidential power of appointment, and thus invites the politicisation of the senior judiciary. The Judicial Services Commission (JSC) supervises the minor judiciary and consists of the Chief Justice as the chair and any two other Supreme Court judges appointed by the President. This removes the current condition that the other two members of the JSC must be the two most senior judges, or the senior judge and next senior judge with experience in the courts of first instance. This is again a direct invitation for the President to exercise favouritism. Taken together, these two changes will severely undermine the principle of judicial independence, the most fundamental of all constraining principles in a constitutional democracy.

Between State and Society

The Twentieth Amendment framework described above, by comprehensively weakening power-sharing, checks and balances, and accountability within the executive, between the executive and the legislature, and between the executive and the judiciary, will establish a system of government that will formally concentrate untrammelled power in the executive President. Such a formal system will give rise to a proliferation of informal practices that will further worsen the situation. By removing the most basic forms of accountability constraints and encouraging impunity, it is a system of government that will produce authoritarianism, corruption, exclusion, lawlessness, and a violently repressive state. By the time these  consequences start being felt in society at large, the entire institutional framework of constitutional democracy will have been debilitated. They will not therefore be able to perform the role of channelling and managing social discontent. When there are no institutional means for this purpose, social discontent will turn into political conflict. Faced with such challenges to its authority, in both Sri Lankan history and experience elsewhere, there is only one known way an authoritarian presidential state reacts: with the disproportionate use of state violence. When the regulatory institutions of constitutional democracy are not there for the exercise of the state’s monopoly of legitimate violence, there will be nothing to differentiate between the use of authorised coercion to enforce public order (which is legitimate) and state terrorism (which is not). This will then create more and more political conflict, paradoxically rendering a constitutional framework justified on grounds of order and discipline into one of unmanageable instability and volatility.

The relation between society and the authoritarian presidential state envisaged by the Twentieth Amendment will debilitate constitutional democracy in another highly significant way, and that is by destroying what little remains of the unstated rules of civility, restraint, proportion, tolerance, and accommodation in Sri Lankan political culture. The concentration of the power of the whole state in one person creates the conditions for the moral debasement of not only that person and his supporters, but also society as a whole. All non-state institutions that must enjoy some autonomous existence from the state for the functioning of constitutional democracy – political parties, the media, universities, the private sector, the clergy – all become not only excessively politicised, but politicised around the pleasure of one person.

The public orthodoxy of obsequious conformism that this will create signifies not merely the loss of human dignity, which under such a system, many if not all of these institutions will more or less happily trade in for the corrupt benefits of the system, at least in the short term. The more insidious effect of this social transformation will be that we may collectively forget how to be the citizens of a constitutional democracy, making the task of re-democratisation even more of a challenge when the inevitable collapse of the post-Twentieth Amendment Constitution will come under the unwieldy weight of its top-heavy authoritarianism. Previously we have self-corrected bouts of authoritarianism in Sri Lanka because the essential constitutional and non-state institutions have been there, battered but serviceable, to serve smooth transitions back to relative democracy. The danger posed by the Twentieth Amendment is that it has the serious potential to obliterate this institutional resilience and social capital necessary for democratic self-correction. This constitutional misadventure will thus create not merely a crisis of state, but in doing so, rob us of the limited cultural resources we have to sort out the mess its architects will leave behind.

Does the Government have an Electoral Mandate for the Twentieth Amendment?

For some, this will not be a question at all, or one that is easy to answer. In both the presidential and parliamentary elections of 2019 and 2020, the SLPP won decisive victories with significant majorities in both vote share and seats. While issues other than constitutional change influenced the outcome of these elections, that the SLPP planned to roll back the Nineteenth Amendment was explicitly known well before it obtained power. There are also other reasons giving credence to the view that the public rejected not merely the Yahapalanaya dispensation but also its main achievement, the Nineteenth Amendment. Almost from the day it was elected in January 2015, the Yahapalanaya government demonstrated its inability to rise to the task of delivering on the remarkable mandate for democratisation it had won. The bond scam allegations, the constitutional coup crisis, and Easter Sunday wrecked its credibility on anti-corruption, good governance, and national security competence. Under difficult conditions, its economic delivery was inadequate, and its inability to manage or communicate anything ensured it received no credit even for the reforms it did enact, even though again it failed to deliver a new constitution. All of this in turn, it is possible to argue, was connected to the hydra-headed design of the executive under the Nineteenth Amendment. In all these ways, a plausible argument can be made that a rejection of some sort of the Nineteenth Amendment does reflect the majority view in the electorate at present.

Nevertheless, if we go back to the conceptual framework of constitutional democracy set out at the beginning of this discussion, and use that as the basis to assess the way in which the government has interpreted its mandate, we find many significant reasons for pause. If we accept that framework, and we further accept that the people may have voted to remove some of the constraints on the executive presidency in the interests of strong government, we nevertheless have to also accept that it is practically inconceivable that they would have voted to deprive themselves of their sovereignty. To put it in less abstract terms, even if in broad terms it is accepted that there was a rejection of the Nineteenth Amendment because of the electoral toxicity of the Sirisena-Wickremesinghe duo, what precisely in that framework was rejected?

In proposing to do away with it, how did the drafters of the Twentieth Amendment Bill decide that they have a mandate do all the things described above, but do not have a mandate to remove the two-term limit on presidential office, the reduction of presidential and parliamentary terms from six to five years, and the fundamental right to information? Even if the voters decided that the structure of power-sharing between the President and Prime Minister under the Nineteenth Amendment made for an inefficient system of government for Sri Lanka, is it conceivable that they voted to politicise the judiciary and police, to undermine the independent commissions, to remove the cap on the number of ministries, to weaken the public audit, and generally to do things that would increase the scope for corruption and bad governance?

Is it possible that, if the Twentieth Amendment Bill had been subject to public debate before either of the elections won by the SLPP, the people would have decided to remove so many of the constraints on government in such ways as to effectively surrender their sovereignty and their constitution to the goodwill and genius of one man’s rule? There are no doubt sections of the electorate to whom this may not present a problem. And Sri Lankans are an emotional people who like to register their political preferences in dramatic ways. In 2019 and 2020, they wanted to deliver a deserved kick to Yahapalanaya; just as much as they did to their most impassionedly loved President of recent times in January 2015.

But, in the final analysis, there must surely be significant doubt cast upon the proposition that a rights-bearing population that is accustomed to an eighty-year old tradition of electoral democracy would, as a whole, consent to the destruction of their constitutional democracy in the ways contemplated by the Twentieth Amendment Bill.