Constitutional Safeguards Essential For Protecting & Promoting Peoples’ Freedoms, Rights & Prosp...

By Lionel Bopage –

Dr. Lionel Bopage

We as a nation should be extremely concerned about the potential of an adverse political and legal transformation that would be caused by the adaptation of the Twentieth Amendment to the Constitution Bill (20A) currently being debated in the Parliament. The current move to get rid of vital constitutional safeguards pause a serious threat to the peoples’ sovereignty and freedoms. While it is true that the people have given the government a mandate to work for their prosperity, it does not mean the head of state had been given carte blanche to do whatever he wants at will.  

A parliamentary democracy would be better served by staying away from and not allowing predatory politics. It is a sad historical and political reality that, without any checks and balances, human nature has driven many an individual to use political affiliations and office to maximise private benefits, usually to the detriment of the public interest. That is why constitutional controls are crucial potent tools in a parliamentary democracy; they serve as checks and balances on executive. 

These checks and balances become even more critical, when a religiously majoritarian ruler decides the laws and rights of the people. With a single autocratic head of state for the country, decision making will favour enhancing the well-being of the autocrat, their family, clan and cronies. Absence of such constraints would hinder the advancement of a pluralistic society. Governance systems based on majoritarianism – headed by an autocratic ruler – have more often than not demonstrated that when their eccentric and skewed ideologies prevail, the potential exists for the suppression of political opponents and the oppression of the people, just as our country’s history sadly attest to.

20th Amendment will provide the President with authoritarian powers and immunity from lawsuits. He/she will have power to dissolve Parliament and appoint or remove Ministers and junior Ministers at will, thus it disempowers Parliament. The President will have power to appoint members to all independent commissions; Chief Justice and the Judges of the Supreme Court; the President and Judges of the Court of Appeal; Members of the Judicial Service Commission (other than its Chairperson); the Attorney-General; the Auditor General; the Parliamentary Commissioner for Administration (Ombudsman); and the Secretary-General of Parliament. Urgent bills will be rushed through if Cabinet of Ministers view those as urgent. 20A replaces the Constitutional Council with a weakened Parliamentary Council – in effect a rubber stamp.

Among the key victims of 20A are: the Audit Service Commission and the National Procurement Commission to be dismantled; the Right to Information Commission’s framework and operability critically compromised; the powers of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) severely restrained; the Election Commission of Sri Lanka’s ability to conduct free and fair elections seriously curtailed; and the Office of Missing Persons tasked to bring closure to suffering victims will soon fade away with perpetrators of enforced disappearances and other heinous crimes given immunity from prosecution.

Parliamentary majorities presided over by an autocratic ruler have the power to dislodge the rule of law with the backing of popular opinion. It is in this sense, 20A is anti-pluralistic, anti-participative and anti-democratic. In its present form, 20A strategically serve to restore an authoritarian governance structure that would brutally compromise the ‘constitutionally enshrined framework of oversight and accountability’. Despite the citizens being the source of the country’s wealth and people’s well-being, their necessities and interests will be at the very bottom of the regime’s political priorities. If the Amendment is adopted as proposed, majoritarianism will determine the law of the country.

Rule of law based on constitutionally guaranteed rights implies that the government cannot bend the law. If applied consistently and in an accountable manner, the application of the rule of law does not need to be opaque and vague. Politics and law are distinctly different, but history has demonstrated that politics has increasingly displaced the rule of law in determining how people interact with governments. Popular majoritarian sentiment, not evidence-based research or science or equity, determines public policy. The will of the majority without checks and balances have become the political paradigm of the day. Those who are not in the majority sacrifice their rights as a people and community and become subservient to the whims of the majority. 

Parliamentary democracy can encourage and strengthen maintaining the basic law of a country as defined in its Constitution. Yet, without the appropriate checks and balances that restrain majoritarianism, democratic processes can be manipulated to undo democracy itself. This has been amply demonstrated in many countries including in Germany, Italy and Spain. Unstable political situations provide circumstances for opportunistic individuals and regimes to acquire and hold onto power. Such individuals and regimes use political processes to transfer resources to themselves and create a rent-seeking political culture.

In a democratic set-up such attempts can be and should be challenged by the accountability mechanisms incorporated in the country’s basic law. But in an authoritarian or totalitarian set up, political interest groups manipulate the system to generate wealth not through creation, but pillage via subservient crony political activity. They perpetuate and solidify their cronyism-based support networks by providing ever more monetary benefits at the expense of the public purse. Such crony networks can extend from villages to cities, within the bureaucracy and the civilian and military administration. Introduction of the current amendment will only enhance this culture by making it immune to the rule of law.

One of the unsung virtues of democracy is that it relies on collective decision-making and prevents an individual making decisions on behalf of the peoples of the country. It operates as a check on the power of those who are in authority and offers a mechanism for the orderly succession of power. Thus, it ensures the sovereignty of people by allowing those in authority to be replaced following free and fair elections. In addition, democracy allows for competition among many leaders who wish to challenge those in authority by pledging to do better than those in power. Hence, in general, democracy allows for an orderly succession of power without conflict.

Limiting citizens’ freedom is a bit like biting the hand that feeds. A regime that came to power through democratic processes may push the boundaries of democracy by curbing the constitutional constraints, for they care more about themselves and their self-serving ideology. They will not hesitate to dismantle the collective and democratic decision-making processes, which would endanger the very same institutions that contributed for the regime to be put in power. In that light what follows in Sri Lanka has not been an exception. The newly formed government and the head of state are manipulating the democratic will of the people for replacing even the currently inadequate constitutional safeguards that are being completely ignored.

The Executive should be responsible and accountable to the Legislature and should not be on par with the Legislature or the Judiciary. However, 20A is designed to consolidate power in the office of an all-powerful Executive Presidency. It removes the checks and balances on Presidential powers and makes room for authoritarian rule by taking away the civil society’s right to play a role in the governance system. It not only diminishes the role of Prime Minister, but also subordinates his/her powers and the Parliament to the Presidency.

20A will seriously undermine the separation of powers, the rule of law, transparency of decision making, and our fundamental freedoms. The entrenchment of such an all-powerful executive Presidency is a precursor for future dissension and turmoil. If passed in its current form the amendment will pave the way for a system of autocratic government led by a single leader with a small political cohort holding absolute power and sound the death knell for the parliamentary democracy as we know it.

Our society needs to be widely aware of the adverse implications 20A would have on our democracy. We urge all Parliamentarians to work towards preventing such dissension and turmoil by not allowing the Twentieth Amendment to be adopted in its current form. The people need to be given the opportunity to decide their fate by casting their votes at a referendum specifically held for amending the constitution as proposed by the President. Let they themselves directly decide on the status of their fundamental rights, freedoms, prosperity and sovereignty.