Colombo Telegraph

Introduce A Bill In Parliament To Repeal The 18th Amendment

By R.M.B Senanayake –

R.M.B. Senanayake

It is becoming clear that the next Presidential election will be held in January 2015 or so. The Opposition is seeking to field a common candidate with a single issue which is the abolition of the Executive Presidency. But the President is seeking to counter the demand by justifying it as necessary to deal with a resuscitation and revival of the demand for a separate State or Eelam. Mahinda Rajapaksa seems to expect just that despite the denial of the TNA. He can ensure that it happens by continuing the military occupation of the North. Such a revival will justify his stand.

In almost every other civil conflict and even wars between States, a conflict is ended by a Peace Treaty where the winner and loser will discuss the terms. The winner of course has the stronger bargaining power. Such a peace treaty binds both parties to the conflict to eschew violence and accept the status quo or negotiate for a change acceptable t both parties. But MR missed the opportunity to do so. Instead he launched on a massive program to restore the infrastructure destroyed by the war- a destruction which was due both to the Army and the LTTE. In fairness both parties should have shared the cost of the reconstruction. But the government foolishly took over the entire burden. So it used funds which could have been used more equitably in the whole country to restore the infrastructure in the North. Now it wants to spend on an expressway for the North. The President seems to have thought he can win the votes of the Tamil people by such investments as happens in the South. The TNA MP Mr. Sumanthiran in a recent speech in Parliament said the Tamils were not fooled. They looked on and then voted for the TNA and not the UPFA. The bible says man does not live by bread alone. Once man’s basic needs are satisfied he wants personal freedom. The military occupation in the north deprives them of this basic freedom and the President probably expects that someday the worm will turn as happened in the late 1970s. So the President’s justification of the Executive Presidency may have its own logic. He may even wish that such a struggle would take place soon to vindicate him. But if he wants to resolve the ethnic problem and ensure peace then he could still discuss the terms of a peace agreement with the TNA who are the representatives of the Tamil people. But the President has shunted the issue to a Parliamentary Select Committee which can deliberate as long as it likes. The TNA naturally wants direct talks with the Government. So a perfect stalemate for the President who seems not to worry about the need for a peace agreement.

But what is wrong with the Executive Presidency is its absolutist character. Don’t Executive Presidential systems of government exist in the USA, and France, without undermining freedoms guaranteed in the Constitution? What we adopted in 1978 was not the Executive Presidential form but a hybrid of both the Westminster and the Presidential systems while dropping the separation of powers, which is the unique feature of the Executive Presidential system, introduced to curb the possible misuse of the powers of the President. Another feature which was dropped was the accountability of the President to the Judiciary. So we have a President like our ancient absolute kings answerable and accountable to no one. The absolutist character of the Executive Presidency was strengthened by removing whatever checks and balances still existed through the 18th Amendment which also removed the term limits and provided for a President for life if necessary through a flawed elections procedure where the Elections Commissioner lacked independence and was as much subject to the President’s influence and control as any other official in the public service since his tenure is not protected under a law.

We don’t have to throw out the baby with the bathwater. The pure Executive Presidential system has its merits and one of them is the separation of powers which deprives the Members of Parliament from holding office as Ministers. In France they can be appointed but they lose the voting rights in Parliament. This will prevent the buying over of MPs through the offer of Ministerial posts with their perks and privileges and deprive the independence of the Parliament which then becomes a subordinate arm of the President.

While the issue of whether to abolish the Executive Presidency because of its adverse features needs to be abolished or not has to be canvassed with the people through an election or referendum, the pernicious features of the Executive Presidency established by MR. can be removed by Parliament through a law to amend the Constitution. Why then doesn’t the Opposition and those in the UPFA like the JHU who want to abolish the Executive Presidency not consider introducing a Bill in Parliament to amend the present Constitution by repealing the 18th Amendment, and removing the absolute immunity of the President under the law? The Opposition should demand that there should be a conscience vote on the Bill so that all those in the UPFA who want to abolish the Executive Presidency can vote without being penalized by the Coalition. The Opposition should introduce such a Bill in Parliament after the presidential election is announced. It may or may not be passed with the necessary 2/3rd majority but it will help to mobilize the opinion of the voters. Hasn’t the President also indicated that he is willing to amend the Constitution as demanded by the JHU? Why not take the President at his word and allow him to contest while seeking to remove its pernicious features? The Bill if passed will not be retrospective and hence MR can contest and win.

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