Constitutional Amendments and the Executive Presidency

By Shanie

"The Executive Presidential System being most destructive and harmful to the democracy of Sri Lanka and having accepted its abolition as an essential priority task, it is hereby agreed to terminate the Executive Presidential System before the end of the tenure of office of the Sixth Executive President which is to be commenced from the year 2005."

(June 26, Colombo, Sri Lanka Guardian)That was from the Policy Agreement entered into between Mahinda Rajapaksa, the then Presidential candidate, and the JVP in the run-up to the 2005 Presidential Election. That election was a close and hard fought one and the JVP’s support proved crucial as Rajapaksa narrowly edged to victory. The LTTE’s significant role in that election is now history. Into his second term, President Rajapakse now seems intent on consolidating and strengthening the powers of the Executive Presidency, rather than the promised abolition of a system that was ‘destructive and harmful to democracy in Sri Lanka’..

The priorities for the country now are to forge reconciliation among the ethnic groups and to move forward towards economic prosperity. The call to set up a ‘Truth and Reconciliation’ Commission on the lines of the South African Commission was to help in the reconciliation process, to acknowledge mistakes and heal the wounds. The appointment of a ‘Lessons Learnt and Reconciliation Commission was a step in the right direction, even if its mandate falls short of the South African model. The appointment of a Commission must also go hand in hand with practical steps to win the confidence and meet the grievances of the people of the North and East. This should have been the priority for a government that intended to forge national unity and reconciliation.

Political stability and democratic freedoms are essential pre-requisites for economic growth and prosperity. The President has won re-election and the Government has a near two-third majority in Parliament. That should have provided a sense of stability. Instead, we have a government that appears to be acting either as if it was unsure of itself or with a hidden agenda to entrench authoritarian rule. The current moves towards constitutional amendments unfortunately point in the latter direction.

There is no urgency for the constitutional amendments that are being proposed. The Constitution of a country should reflect the mood and aspirations of a people, not just of its political leadership. At the two recent elections – Presidential and parliamentary – the proposal to extend the term of office of the President and to scrap the provision for independent Commissions to oversee key areas of democratic governance was not put before the people. Indeed, what was stated by the political leadership was the opposite – eliminating any flaws in the seventeenth amendment to strengthen good governance and to ensure greater accountability to the people by the political leadership. Sadly, what is being proposed as the first legislative act of the new Parliament is to negate these two vital principles of good governance. It is reported that some individuals and constituent parties within the government also have reservations about the wisdom of these amendments. But it is also reported that the cabinet has already approved the proposed amendments. So even publicly aired reservations have no meaning if our legislators fail in their conscientious duty to ensure good governance.

The proposed amendments have a far-reaching impact on governance in Sri Lanka. They therefore must not be rushed through as urgent legislation. There should therefore be adequate time for public debate and judicial review. Unfortunately, both our Republican Constitutions of 1972 and 1978 were framed to suit the parties then in power with a two-third majority. Constitutions should be consensus documents that enjoy wide acceptance by the people of the country. They should not be documents that only meet the aspirations of those enjoying political power. It should afford protection to the people from arbitrary rule. In a democracy, the people are sovereign. The Constitution is intended to provide restraints and checks on those wielding political power from violating the sovereignty of the people, protecting the people from arbitrary rule.

The 17th Amendment

The seventeenth amendment was presented during the Chandrika Kumaratunga administration and was passed in Parliament in 2001 with a rare show of unity. Its objective was to ensure good governance, free from undue political interference. Independent Commissions were set up to oversee key areas of governance – public services, police, judicial services, elections, human rights, bribery and corruption, etc. The members of these independent commissions were to be selected by a ten member Constitutional Council, three of whom were ex-officio – the Prime Minister, the Speaker and the Leader of the Opposition. But the key was that the majority of members of the Constitutional Council were to be selected in a bi-partisan manner by consensus between the government and the opposition. Despite whatever flaws in the amendment, the concept of independent commissions was implemented and worked well. The principle of impartiality in key areas of governance had been accepted.

It is a pity that President Mahinda Rajapaksa, on assuming the Presidency and enjoying Presidential immunity, chose to violate the seventeenth amendment by not appointing the Constitutional Council and defeating the objectives of the seventeenth amendment by making his own appointments to the various Commissions, which thereafter lost their ‘independence’. Credit must however be given to some eminent individuals who declined their appointments to the different Commissions on the ground that it violated the spirit and the letter of the seventeenth amendment.

It is reported that the new constitutional amendment being proposed and approved by the Cabinet of Ministers is for the Constitutional Council to consist only of those currently holding political office. Gone will be the independent eminent persons chosen by consensus between the government and the opposition who formed the majority in the Constitutional Council. Under the proposed amendment, the Constitutional Council will lose its independence and its credibility. The appointments to the various Commissions will revert then to being made on a political basis, negating the whole objective of independent Commissions overseeing key areas of good governance. One can only hope that good sense will still prevail and the proposed amendment will be dropped or rejected.

Presidential Term of Office

The second proposed amendment is reportedly to drop the clause restricting the term of office of the President to two. Here again, the framers of the Constitution had this clause inserted because a change in the Presidency was considered necessary to ensure good and democratic governance. We can see, from the example of say Robert Mugabe in Zimbabwe, how long years of executive power can corrupt individuals. Mugabe and others like Ferdinand Marcos in Philippines had themselves elected and re-elected in elections to maintain a facade of democracy. Power corrupts and too long a taste of power corrupts even more.

In 2005, President Rajapakse will recall, the Central Committee and the All Island Executive Committee o the SLFP of which he was a member, passed a resolution to make Chandrika Kumaratunga the Life President of the SLFP in recognition of her services to the party. That was at the tail end of Kumaratunga’s Presidency of Sri Lanka. When senior leaders of the party conveyed this decision to her, she declined stating that the SLFP was a democratic party and there had never been a Life President in its history. No doubt, it was democratic principles that made her decline the offer. We can only hope that President Rajapaksa, with similar credentials and a family tradition of adherence to democratic principles, will drop the proposed amendment to scrap the two-term restriction on the Executive Presidency.

In conclusion, it is worth recalling what the late Dudley Senanayake had to say of the Executive Presidency when it was first mooted at the time of the framing of the first Republican Constitution in 1971: "The Presidential system has worked well in the United States where it was the result of a special historic situation. It works in France for similar reasons. But for Ceylon (Sri Lanka), it would be disastrous. It would create a tradition of Caesarism. It would concentrate power in a leader and undermine Parliament and the structure of political parties, In America and France it has worked but generally it is a system for a Nkrumah or a Nasser not for a free democracy." Prophetic?