Sri Lanka and the 18th Amendment
by Michael Patrick O'Leary
Sri Lanka and the 18th amendment
Recent events in Sri Lanka have been overshadowed by a new amendment to the constitution approved by parliament on 8 September. Its main changes are:
A president, if elected, can serve any number of terms; previously a president could serve a maximum of two six-year terms;
The 17th amendment to the constitution has been repealed;
The election commission will no longer have the power to prevent the use of state resources during elections.
Apart from the government papers the Daily News and the Sunday Observer, the English language press has led protests against the 18th amendment. The parliamentary opposition, the United National Party (UNP), caved in to the changes (two days after they were publicised, its leader Ranil Wickremesinghe left for a wedding in India. Ranil’s challenger for the UNP leadership, Sajith Premadasa, made no statement about the changes.)
The United National Party ceased long ago to be an effective opposition. It is no longer “national” (it mainly appeals to a westernised urban elite, ignoring the rural masses), nor “united” (many members want their party leader out), nor hardly even a “party” any more (President Rajapaksa has persuaded many of its MPs to cross over to the government).
After parliament passed the amendment — with a majority of 144 votes — the UNP suspended the membership of seven of their MPs who had supported the bill. One TNA (Tamil National Alliance) MP voted with the government. Rauff Hakeem and seven other SLMC (Sri Lanka Muslim Congress) members, elected only this April on the UNP ticket, voted with the government. Hakeem spoke for the bill using time allocated for the opposition. (Hakeem, who once said it was unreasonable to expect a party to stand by its election promises, has taken his party into and out of alliances with the government. He says: “My conscience is clear. I know I have not sought any opportunistic favours.”) (1).
Leftists who have consistently said the presidency was too powerful did not oppose the bill. The 17 votes against the amendment were by members of the DNA (Democratic National Alliance, Sarath Fonseka’s party) and the TNA. The rest of the UNP, including Ranil Wickremesinghe, did not vote.
The received wisdom has been that most of Sri Lanka’s problems have been caused by the executive presidency introduced in President JR Jayawardene’s 1978 constitution. Since 1994, SLFP-led political alliances have been clamouring for changing what was seen as a UNP constitution. SLFP president Kumaratunga promised to abolish it but didn’t. Abolition was a main plank of Fonseka’s platform. Wickremesinghe said the country should be ruled by an executive prime minister (preferably himself). President Rajapaksa himself promised to abolish the executive presidency and has helped the UNP leader by having one-to-one discussions with him purportedly to that end.
Professor GL Peiris entered parliament in 1994 from academia calling for constitutional change. He has served in UNP governments and had a hand in drafting the 17th amendment which he now finds deeply flawed. He is currently foreign minister in the SLFP-led government. Professor Pieris’s explanation for supporting the executive presidency now is that the LTTE would not have been defeated without strong leadership and similarly such power is needed to rebuild the nation.
The 17th amendment provided checks on the powers of the president, providing for high-level appointments like the chief justice, the inspector general of police, and the election commissioner and appointments to the important state commissions.
Inefficiency, and unfairness, results if jobs are handed out as political patronage. TUC secretary Saman Rathnapriya said the end of the 17th amendment will mean a politicised and corrupt public service. Navarthne Bandara, president of the Postal Officers Union, said that under the new arrangements “power to appoint officials to the public service will be vested with ministry secretaries who are appointed by ministers under whose whims and fancies they will function. This will surely have the public service eating out of the politician’s hand” (2).
The pressure group CPA (the Centre for Policy Alternatives) (3) says the 17th amendment did not work because of “intransigence and contempt for constitutional provisions on the part of successive presidents, rather than any fatal structural flaw that made it inherently unworkable.”
The 18th amendment will replace the Constitutional Council by a Parliamentary Council consisting of five members. Three are ex-officio: the speaker, the prime minister and the leader of the opposition. The speaker (currently the president’s brother) and the prime minister are nominated by the president. The other two members will be separately nominated by the prime minister and the leader of the opposition (Ranil is routinely referred to by the Sunday Leader as the president’s “fourth brother”) to include ethnic groups not represented by the three ex-officio members.
Those opposed to the amendment are concerned at the way it was rushed through, as an urgent bill without consultation. The Supreme Court ruled that a referendum was not required. The CPA says: “These changes are contrary to the successive mandates given to the president by the people in the 2005 and 2010 presidential elections.” The CPA condemns the secrecy of the operation: “Even at the Supreme Court hearing the intervening petitioners were only given copies of the proposed changes after the government started making its submissions. Few outside government even had access to the proposed amendment before it was sent to the Supreme Court”.
Supporters claim it allows the electorate to vote for whomever they want. Opponents argue that the incumbent has unfair advantage because of the state resources he commands. The changes to the electoral commission further strengthen the position of the incumbent.
A craving for firm government can border on a masochistic desire to be dictatorially dominated. Most businessmen interviewed in Lanka Monthly Digest cite “benevolent” dictators like Lee Kwan Yew or Mahathir Mohammed as personal heroes. Lakbima News editor, Rajpal Abeynayake, writes: “It has to be remembered that Mahathir’s repression in Malaysia and Lee Kwan Yew’s domination in Singapore went as far as was necessary to keep opponents at bay but was tolerated because the economy flourished. There was no toleration of bad governance or political clowns who embarrassed everybody.”
The columnist Malinda Seneviratne warns: “History has shown time and again that tyrants have come to power democratically and ‘nice people’ have ended up abusing trust and position” (4). He adds: “Forget names and faces. Let’s concentrate on the wording. Let’s imagine the unimaginable. It is far better to assess the worth of any particular amendment by imagining that the benefits accrue to the politician you dislike most” (5).