By Mohamed Harees –

Lukman Harees

Recently, Sri Lanka woke up to official publication of a draft constitutional amendment that will give the Executive President, the power to dissolve parliament and also offer him full immunity against prosecution. Under the proposed new amendment, there will be no separation of powers, and appointment of members from the Judicial Service Commission to the Police Service Commission will be done by the Chief Executive, which is not a sign of a healthy democracy. The 20th Amendment has also proposed inter-alia, several changes which include the replacement of the vital Constitutional Council (CC) with a new body called the Parliamentary council, which will consist only of members of parliament with no place for civil society representatives. As experts point out, the centralization of powers in the hands of a single person is dictatorial, despotic, autocratic and tyrannical. This proposed amendment was referred to the Supreme Court for a determination whether it will require approval of the people at a referendum. 

Sadly, those who fought to stop this draconian Amendment from being part of the Constitution found no hope at the highest citadel of justice. It now appears that the proposed 20th Amendments have received the blessings of the Supreme Court and with some changes will take a cake walk into the law books through the Parliament by virtue of the ruling party’s two third’s majority. This determination will be a death knell for democracy involving accountability, Justice, Reconciliation, Rule of Law and Good Governance in Sri Lanka. Many legal minds and bodies including BASL Commonwealth Law Associations have spoken about this amendment being a retrograde step, which will run contrary to the rule of law and the basic tenets of the principles of separation of powers. It is interesting to note that our 1978 Constitution which is 42-year-old is reaching its 20th amendment now, when  comparatively the 233-year-old US constitution has been amended only 27 times. This will roll back the spirit of the 19th Amendment which was seen as the most progressive pro-democracy reformist move since Sri Lanka came to be governed under the all-powerful executive presidency in 1978. 19th Amendment inter-alia, depoliticised the government administration by ensuring the independence of key pillars such as the judiciary, public service and elections.

It is sheer dishonesty and political hypocrisy that politicians who came to be elected to this highest seat of power promising to abolish this most controversial constitutional power base which made Sri Lanka into a democratic dictatorship, have let down the electorate in style. Today, the talk of abolition of this office, is not in the card at all. More than 4 decades after then PM JR Jayewardene appointed himself as the first Executive President, with the blessings of his the ‘then’ five-sixths majority in parliament, the Executive Presidency in Sri Lanka seems to be in no danger of being abolished. The last move made hurriedly  to abolish the post by way of the 20th Amendment to the Constitution was in fact, an exercise in futility, being roundly defeated at the Cabinet meeting of September 19, 2009. Instead, the moves are geared towards reversing the process of democratisation, to strengthen the dictatorial powers vested on the incumbent President rather than abolishing the post. Any talk of abolishing the post of the Executive President has today become a public joke. Thus, the much maligned post of Executive Presidency with wide ranging dictatorial powers under Constitution of September 1978, will continue with additional powers, with general public being virtually clueless about its far reaching dangers.  

From its inception, the 1978 Constitution came under fire, especially regarding the extent of executive power devolved on the holder of that post. Other than President Premadasa, who was elected into office when JR’s term expired, all Presidential candidates who contested the Presidency, came to office on a promise of abolishing the executive Presidency and putting in place a new Constitution. President Chandrika Kumaratunga, one of the biggest critics of the 1978 Constitution did make an effort to change the Constitution, but her efforts were defeated in parliament amid scenes of hooliganism in the well of the House. President Mahinda Rajapaksa who followed Ms. Kumaratunge as President, too made mention of abolishing the executive presidency, but made no serious effort to abolish it during his term of office. However on the contrary, he went a step further and brought in the 18th Amendment to the Constitution, to extend his term in office. President Maithripala Sirisena also promised change the Constitution and abolish the post of Executive President. Unfortunately, once in office his greed for power took hold, even attempting to extend his Presidential term and also suggesting he was willing to contest again, although he came to power stating he will be a one-time President. Of course, 19th Amendment was a feather in his cap which reduced the Presidential powers. 

According to some economic experts, one of the prime reasons sought for vesting on more powers on the Executive President was to spur economic development. In fact, at the start, it was thought that the changeover from the Westminster model of a parliamentary system to a de Gaullist type of presidential system was justified on the ground that, for the acceleration of economic development as envisaged by the new regime, a strong and stable government was required. Later, the protracted ethnic war and government propaganda on absolute necessity of powerful government, by extension, of the executive presidential form of government. The imperatives that guided the newly empowered presidency corresponded with Jayewardene’s admiration of the developmental results achieved by his more authoritarian contemporaries elsewhere in Asia. Of course, there were economic successes at that time, but at the heavy cost on the democratic process in Sri Lanka- a country, which was treated as a model “Third World Democracy” at the early stages of its Post-independence era.  

According to a research article by Rajesh Venugopal (London School of Economics) in 2014, he opines, with the benefit of hindsight, Sri Lanka’s executive presidency has failed under its own terms. ‘the high-tide of authoritarianism that Jayewardene personified in the 1980s came about not just because the executive presidency provided him with many powers, but because this was buttressed by overwhelming legislative support. Throughout his term in power (1977-88), Jayewardene had a parliamentary super-majority (140 of 168 seats)inherited as a relic of the previous constitution and its first-past-the-post system. His thought was that ‘no such majority would be possible again under the new proportional representation rules. Nevertheless, by preserving the 1977 parliament, and by controversially extending its life through to a second, unelected term until 1989, Jayewardene afforded himself an unprecedented measure of power over an exceptionally long period of time. (Thus) in his ten years as president, Jayewardene had the luxury of passing fourteen constitutional amendments, each of which required a two-thirds legislative majority. His successor Ranasinghe Premadasa would also pass another two amendments in the dying days of that extraordinarily elongated parliament in December 1988’. Today, even under the PR system, the SLPP under incumbent President Gotabaya Rajapaksa acquired almost 2/3rd majority in the legislature. Thus, PR system did not clip the President’s wings.   

Thus, 20A Amendment basically attempts to take Sri Lanka back to the executive presidency that was put in place by the Constitution of 1978. It was vested with enormous powers and regarded as among the most powerful in the world. An executive presidency is by its very nature undemocratic and in Sri Lanka it was more so as checks on the exercise of presidential power were diluted over the years. This prompted calls for abolishing the executive presidency and reverting to a parliamentary style of government. However, this was easier said than done. This is only a dream as things now. 

Doing away with 19A has been a key item on the agenda of the Rajapaksa family and the SLPP, which it founded and dominates. The Rajapaksas were of the view that 19A was aimed at keeping Mahinda and his brothers out of power. The clearest case of self interest in the abolishing of the executive presidency is that of former President Rajapaksa. There is a history behind this journey into totalitarianism. According to a research article on ‘Authoritarian trends and their continuity in Sri Lankan politics: A study of operationalizing of authoritarianism from 2005 to 2015 Period’ by Upul Abeyrathne, Upali Pannilage and Nelum Ranawaka, ‘In fact, the political development that took place during the previous Rajapaksa regime go beyond authoritarian type of government and has incorporated features a totalitarian rule. The regime since 2005 had sought to gain total control over all aspects of almost everything, both public and private sectors. The then ruling regime took steps to perpetuate totalitarian regime headed by him together with his kith-and-kin since 2005. The specificity of the Rajapakse Regime was that it steered Sri Lanka towards a totalitarian rule through legal and constitutional means while using a cultural mechanism to totalize power in and around the executive presidency and its occupant Mahinda Rajapakse and attempted to perpetuate his rule forever.

‘In the context of the totalizing power project, xenophobia over ethnic other (minorities) became the central feature of totalizing power mechanism. The regime has effectively co-opted intellectual current known as Jatika Chinthanaya in the process of extreme chauvinism to which it has resorted to gain political power and legitimize totalizing of power in and around him and his family. The regime also had strived its best to weaken other political parties through offering political spoils to leading figures of small parties especially to the ones who were vocal to the needs and fancies of majority community. This process has resulted in potential portrayal of Rajapaksa Regime as the top most protector of dominant Sinhalese heritage and power in Sri Lankan Politics. The ethicized politics in post-colonial Sri Lanka helped Rajapakse Regime to sustain a system of terror and justify and legitimate use of terror to achieve political objectives such as law and order’. This underlines the present realities in Sri Lanka.

Particularly in the Post-Easter period, fears of the ‘other’ overtaking the majority domination in Sri Lanka took hold in the Sinhala-Buddhist mind-set, Resultantly, the cultivated mind-set of the people on the necessity of strong and powerful uni-centre for governing, given in the particular challenges specially national security, gave rise to the election of a President and a legislature on a unprecedented majoritarian mandate. It is obvious that the present President is exploiting these fears to strengthen his hold on power which was diminished by the 19th Amendment. 

It was most unfortunate that there was not much public outcry or political activism or protests on the streets were visible to prevent the passage of this amendment to the law books, except challenging it in the Supreme Courts. There were no constructive programs too to build awareness of the people about the inherent dangers of this toxic Amendment to the socio-political wellbeing of the country. In that respect, the Opposition has failed the country at large. History will put them in the same basket and judge them along with those who brought this disaster to the democracy in Sri Lanka. People were made to believe that this amendment will be beneficial to the country and only time will teach them that it will not, if history is of any indicator. The BASL has expressed fears in ruling circles that the reactionary amendment will produce a ‘mass rebellion’. “If the public do not have access to remedy a grievance against the unlawful exercise of powers by an all-powerful President the only remedy will be to take arms against the State,” it declared. 

A democracy is balanced mainly on the supremacy of law as no one is above law. An anthropologist and writer, once describes the reality today in the Asian nation, characterized by propaganda and slogans inspired by patriotism to maintain power. Sri Lankan democracy is the biggest loser with the enacting of 20A. This recent development raised a serious threat towards the doom of democracy or cause a still-stand for democratic progress in the country. There is no doubt, that a constitutional crisis will prevail in Sri Lanka with this anti-democratic amendment getting  enacted. The democracy will die its own death and the Parliament will become a rubberstamp in Sri Lanka. The rise of constitutional dictatorship, centralization of power and uncontrolled power once again will thus. It is not rocket science to predict that history will repeat itself as then once again Sri Lanka become hyper-presidential state. 

Alarm bells have already rung about the military mind-set of the present President who has a penchant to in tolerate criticism and opposition from any source and not hesitating to do away with any opposition to his ambitious plans, however antidemocratic they may be. Recent instructions to the officials to consider his word as akin to gazette notification can give an inkling about his mind-set to flex his newly acquired power muscles. Of course , changing the course of dictatorships is not easy but as Margaret mead famously said “Never doubt that a small group of thoughtful, committed people can change the world. Indeed it is the only thing that ever has”. Only public activism can reverse this course of history! Or is it too late?