Published On:Tuesday, May 7, 2013
Posted by Sri Lanka Guardian
( May 7, 2013, Colombo, Sri Lanka Guardian) On Sunday, this newspaper reported that the government was mooting an amendment to the Constitution, which is expected to be incorporated as the 19th Amendment to the Constitution. The provisions of the amendment are currently being drafted and the process is scheduled to be finalized in three weeks.
To begin with, constitution-making should be a consultative, accommodative and transparent process. However, this cardinal principal has been observed in the breach during the latest clandestine constitution-making exercise, which is now being carried out by a cohort of constitutional spin doctors.
Prof. G.L. Peiris, the former vice-chancellor of the Colombo University and a one-time respected academic should know, deep down in his heart that when the Constitutions are amended, tempered or drafted unilaterally, arbitrarily and clandestinely, as it is being done now, the entire constitution-making process becomes a farce. Sadly though, that has been the track record of the current regime, and also of its predecessors. The retrogressive 18th Amendment to the Constitution was drafted while the entire nation and the political opposition were kept in the dark; it was rushed through Parliament and passed with the help of the crossover MPs, who had been enticed by the offer of various pecuniary incentives.
According to well placed sources, the 19th Amendment seeks to limit the term of the President and the tenure of the Chief Justice to five years. In addition, it seeks to withdraw land powers and a considerable amount of police powers, from the concurrent list of the 13th Amendment and vest those powers with the Centre. Currently, under the 13th Amendment, the subjects in the concurrent list are shared both by the government and the provincial council. In addition, the proposed amendment seeks to bring down the time limit the President can announce new presidential elections, after taking oaths in the office of the presidency, from the current four years to three years.
The limits on the tenures of the President and the Chief Justice imposed by the draft amendment are warranted, because in theory, the amendment places limits on the holders of those offices. But, given the existential realities, the 18th Amendment had already concentrated enormous powers at the hands of the executive and the 1978 Constitution itself has been a disaster in terms of the separation of powers, those changes have no practical value. Their only purpose would be sugar-coating or distracting the electorate and the international community from the real objective of the 19th Amendment, i.e. to weaken the 13th Amendment to the Constitution, by withdrawing the land and police powers which had been delegated, in part, to the Provinces, under the 13th Amendment.
The underpinnings for the proposed amendment are also clear. The government is under pressure from some of its useful allies, such as the Jathika Hela Urumaya (JHU) and rabblerousing Wimal Weerewansa's National Freedom Front (NFF), who have demanded the government to revoke the 13th Amendment. The two parties have threatened to pull out from the ruling coalition should the government go ahead with the Northern Provincial Council (NPC) election.
President Rajapaksa is receptive towards his nationalist constituency and is cognizant of the fact that Weerawansa and the JHU wield considerable sway over the nationalist segment of his constituency.
Hence, mooting the 19th Amendment to the Constitution to placate the nationalist hardliners within the regime.
However, this amendment would be a bitter pill for the ethnic minorities, who would tend to view it as an affirmation of the popular conception this government is unwilling to share powers with the minority communities.
The disenchantment of the minority leadership portends the danger of forcing them away from the Sri Lankan state, for one more time. Ordinary Tamils would equally feel being cheated and blackmailed by the tyranny of the majority. The hard-line elements of the Tamil Diaspora and the protagonists of the Tamil separatist project would have their last laugh.
As the government is proceeding with another round of clandestine constitution-making, it is important it plays by the basic rules of the Constitution. It is mandatory it consults the political opposition, including the Tamil political leadership and the assorted groups of civil society, academics and more than anyone else, the people of the country, whose will is supreme and subordinate to none, at least in theory.
A constitutional amendment drafted and passed unilaterally makes a mockery of the supremacy of the people.