The government elected to office on the 5th of August has brought reforms in the form of the twentieth amendment to the 1978 constitution. This constitution introduced the presidential system of governance to the country, replacing the previous constitution based on the Westminster model. At the time of its enactment, the one criticism about it was that it was paving the way for a constitutional dictatorship. Therefore, every successive election since was fought on the promise to abolish it. The new government has hurriedly drafted the amendment, obtained Cabinet approval and gazetted it, all within a period of one month, giving constitutional reforms priority over several urgent socio-economic issues that burden the people of the country. The undue hurry to move this amendment indicates that the issues affecting the nation and its people are less important to the rulers, than establishing their hegemonic state.
No feature of the draft amendment seems to have any benefit to the country or its people. All proposed changes indicate the return to a hegemonic rule through powers centralised in a single office, by dismantling the democratic process set in motion over years of hard work and dedication to the ideals of democracy. The nature of the proposals indicate that they are also paving the way for succession to the office of President from a single family. This is a clear reinforcement of the return to tribal rule, where the rulership is passed down the family hierarchy. This will lead to tribal authoritarianism to prevail over the consensual decision making process that prevailed under a democratic rule. Unfortunately, this attempt at creating a constitutional dictatorship is being made by a political group who ascended to office on the promise of equality to all, and governance based on meritocracy, fairness and justice. This paper discusses the effects of the draft twentieth amendment on the country and its future, and the fate of its democracy.
Features of the draft amendment and their impact on the country
Features of the draft twentieth amendment thus created are: (1) repeal of the Constitutional Council and its replacement with a Parliamentary Council comprising 5 members selected from Parliament, (2) empowering the President to make key judicial appointments, (3) curtailing the powers of the Election Commission, (4) lifting the ban on the appointment of dual citizens to key government offices and political positions, (5) reducing the age for candidacy to the presidency from 35 to 30, (6) exclusion of the offices of the President and the Prime Minister from being audited, (7) abolition of the Procurement Commission, (8) immunity for the President from all legal action against him, and (9) empowering the President to dissolve parliament after 12 months.
The Constitutional Council under the 19th amendment, comprised of seven parliamentarians and three civil society members. This composition is certainly not ideal as far as the establishment of fairness and non-interference by political elements in making appointments. However, those who can recall its passage will remember that it was against the will of the majority opposition that the minority government in office managed to get even three civil society members into the constitutional council. If the intention of the 20th amendment was to strengthen democracy, the direction should have been to restructure the Constitutional Council, changing the proportion of Parliamentarians to members of the civil society from 7:3 to 3:7 in the least, or altogether removing political representation from the Constitutional Council, creating more checks and balances on the decisions of the President. However, what has happened is the reverse. The Constitutional Council is being replaced with a Parliamentary Council, comprising 5 members from Parliament. This is a return to what prevailed under the 18th amendment with a Parliamentary Council comprising only of parliamentarians, who at best were a set tail waggers. With no checks and balances on the actions of the President, he will be permitted to act at will, pursuing his tribal instincts, to appoint his kith and kin and members of his inner circle, to all state positions of importance. The bottom line would be the increase in public office, of the number of square pegs in round holes, struggling to please the President and the government, as opposed to self-reliant persons, capable of making rational decisions. Naturally, the casualties will be the country, its citizens and in the longer run the economy.
In addition, the President is empowered to make key appointments to the judiciary. Therefore, there is a strong possibility that the tribal practice of appointing his kith and kin and members of his inner circle will be extended to judicial appointments as well. This would also mean that in-service promotions within the judiciary will also need the stamp of approval from the President. Once this practice gets in motion, members of the judiciary will be forced not to earn the wrath of the President if they are to survive in their positions, leave alone aspire for higher positions. Therefore, the probability is that all their decisions will be favourable to the wishes of the President. Most people who would remember the plight of the former Chief Justice, who was unceremoniously removed from office, for delivering an independent judgment on the Divineguma bill, thus earning the wrath of the then President, will take precaution not to suffer the same fate. This would mean that the judicial system in the country will serve only one group, the President and the ruling party, and independence of the judiciary will be a far cry from reality. This is a clear departure from the democratic principle of separation of powers of the Executive, the Legislature and the Judiciary, and renders the judiciary subservient to the Executive. While this would serve to progressively erode the faith the masses have in the judicial process, it would also cause pain of mind and stress to members of the judicial services, whose conscience would be pricked if and when they come under pressure to make such compromises. The clear casualty in this case would be the high reputation the judiciary enjoys, earned through the high standards set by the legal fraternity in the country over the years.
The proposed amendment also provides for the curtailing of the powers of the Election Commission. This would mean opening the doors to violation of election laws by candidates representing the ruling political party, to freely use the arena for their personal gain. This would also lead to an increase in election related violence, which the strongly empowered Election Commission was successful to thwart. This would also mean that the media institutions, which despite regulations, acted in a biased manner, are freed to act out their dramas to support their preferred political groups. Accordingly, the proposed changes will lead to the strengthening of the chances of those of the ruling party to return to office at successive elections, as opposed to any opposing groups, effectively subscribing to the rule of the jungle, as opposed to the rule of law.
Another feature of the 20th amendment is the lifting of the ban on dual citizens to hold political office. No degree of blindness will stop any sane citizen of this country from seeing the ulterior motive behind this provision. The lengths to which this single family goes to meddle with the constitution of the country, to ensure that succession to the high office of President is restricted to members of their family, is simply shocking. It seems to stem from the tribal view that only members of the ruling family should hold the high offices of the state. Some features of the amendments also indicate that the family is covering every eventuality, to ensure that none other than members of the family can aspire for the high office. However, despite the constitutional provisions, it seems incomprehensible how a person having sworn allegiance to his present country of residence, could serve another country with the same degree of sincerity and commitment. Would the country and its security be the casualty?
The amendment also reduces the age of eligibility for the Presidency from the present 35 years, to 30. Similar to the provision to allow dual citizens to aspire for political office, this provision also clearly smells of the need to keep the opportunities for future presidential aspirants within the family. Clearly, the purpose of reducing the eligibility age for the presidency is to cover every eventuality, and to ensure that no person, other than a member of the family will get that job. This implies that there is no suitable successor to the office of President in Sri Lanka, other than a tribesman. Is the country richer or poorer with this constitutional amendment?
The amendment excludes the offices of the President and the Prime minister from being subject to audit. If the actions of the President and the Prime minister are above board, they would naturally be only too willing to have their offices audited and the reports publicised, to advertise the quality of governance under them. The fact that their offices are to be constitutionally prevented from being audited shows that the incumbents to these two offices have no intention of governing clean. The amendment also excludes from audit 117 state organisations coming under the purview of the President and the Prime minister. Some of these organisations are already under investigation for big time financial misappropriation. What will happen under the new legislation is anybody’s guess. What is clearly evident is that these provisions are providing blanket cover for the family to act at will. What benefits would the country gain from this amendment?
Another provision of the amendment is the abolition of the Procurement Commission. The role of the Procurement Commission is to ensure that the due process is followed when spending state finances for procurement purposes. This includes the issues of proper technical specifications, adherence to proper tender procedure which excludes the opportunity for unsolicited tenders and the awards of contracts to preferred bidders, opportunities for graft and similar misdemeanours, generally associated with state sector procurement, mainly due to the magnitude of the money involved. Abolition of this commission would pave the way for uncontrolled excesses in the area of procurements, a luxury this country with its weak economy cannot afford.
The amendment also provides for immunity to the President from all legal action. Providing immunity to the President from legal action pertaining to his decisions in carrying out his duties as the President is perfectly justifiable. In fact, he would be highly constrained if the office of the President were not adequately protected. However, what is dangerous about these provisions is the blanket cover that protects the President even when the fundamental rights of citizens are violated. This is a dangerous provision as it freely allows excesses on the part of the incumbent or his proxies. In a country which has even in recent times suffered from terrorism against the state, the security establishment will have good enough reasons to fear a revival of terrorism, and it could be that some security forces personnel who were in the forefront of defeating terrorism, will view its citizenry with suspicion. The suspicion could be more directed towards the minorities, mostly because recent memories of terrorism focus more on some minority groups. Therefore, it is still possible for violence to be directed against members of the civil society by a state activist, either based on unfounded fear, or even the protracted hatred directed towards minority groups, arising from unhappy experiences of the past, or even the fear mongering by political elements as a part of their election strategy. In such a situation, it would be necessary to have the provision for the aggrieved to be able to file a petition against the violation of their fundamental rights. Abolition of this right is a serious violation of the rights of the citizens, a provision this country will be forced to regret in the future.
The amendment also provides for the President to dissolve parliament after a period of one year. This means that any government other than the President’s own, cannot rule the country for a period greater than one year. This action would have the effect of weakening the opposition and progressively paving the way for a one party rule. These are part of the devious tactics introduced through the constitution to ensure the oppression of the opposition with the aim of sustaining the tribal order.
The fundamental tenet of this amendment is to demolish our cherished democracy and build a dictatorship. It violates several provisions of the constitution designed to protect the rights of the voter. Therefore, this amendment should not be allowed to be passed merely on a two-thirds majority in parliament, but be required to be approved by the voter through a referendum. The voter who was deceived at the election to believe that the country was to be governed by a meritocracy, on the basis of fairness and justice, should be given another chance to review his decision in the light of the new developments, to decide if he is prepared to be ruled by a dictator or if he values his democratic rights. We are grateful to the several public litigation activists who have taken the initiative to challenge this amendment in the higher courts.