Saturday, September 04, 2010

‘No!’ to the Eighteenth Amendment

By Shanie | The Island

"The example of four Presidents voluntarily retiring at the end of their eighth year, and the progress of public opinion that the principle is salutary, have given it in practice the force of precedent and usage; insomuch, that, should a President consent to be a candidate for a third election, I trust he would be rejected on this demonstration of ambitious views." —Thomas Jefferson: Autobiography, 1821.

Thomas Jefferson was the third President of the United Sates. He was born in America, although his ancestors were one of the early settlers most of whom had gone from Wales, Scotland and Ireland in Britain. As a young thirty-two year old and as one of the intellectual leaders of the American Revolutionary War, he was tasked with drafting the Declaration of Independence. Denis Healey, a British Labour political leader, was to write over two hundred years later that the drafters of the Declaration of Independence ‘matched reason with integrity, common sense with vision, and expressed themselves with a grace and clarity which later generations have rarely matched.’

The American Declaration of Independence has become something of a classic, providing the philosophy for democratic governance and the rights of free peoples. Its preamble is particularly apt for countries faced with growing authoritarianism and despotism. It states, inter alia: ‘We hold these Truths to be self-evident, that all men (sic) are created equal, that they endowed…with certain inalienable rights, that among these are life, liberty and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed……All experience has shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government.’ Throughout the world, we have seen, as in Philippines, how peoples’ power was able to throw out elected leaders turned despots.

Sri Lanka was one of the earliest countries in the democratic world to opt for universal adult franchise whereby every adult man and woman, without qualification, had a right to vote and elect a representative to the national legislature and to local government councils. By and large, over the years, we have had reasonably free and fair elections that resulted in regular changes of government; there has however been some concern over the fairness of this process over the last three decades. There were several factors which helped to ensure the fairness of the electoral process and the rights of the people. Among them were a fearless and independent judiciary, an alert civil society, a robust free media and a depoliticized public service, election commission and law enforcement agency. We need to continue keeping these national institutions intact and free from political interference if we are to
preserve our democratic freedoms, and keep the potential despots at bay.

The Seventeenth Amendment

The seventeenth amendment to our Constitution was enacted during the Presidency of Chandrika Bandaranaike Kumaratunge and was a consensus document accepted by the major government and opposition political parties. The amendment set up a Constitutional Council comprising three political leaders from both sides of the House of Parliament but seven others who were eminent non-political figures of integrity selected in a bi-partisan manner by consensus between parliamentarians from both sides. This Council in turn selected persons to be members of various Commissions like the Public Service Commission, Elections Commission, National Police Commission, etc. The members were selected after careful vetting of nominations received. The selected names were submitted to the President for formal appointment. The President had no right to appoint anyone from outside the list submitted by the Constitutional Council. Indeed, there was the well-known stand off between the President and the Constitutional Council with the President questioning the ‘independence’ of a nominee, a retired Supreme Court Judge, to the Elections Commission. But the Constitutional Council displayed their independence by standing firm and refusing to withdraw their nomination.

The Seventeenth Amendment worked well with the Commissions showing much greater independence in the discharge of their functions. The people had greater confidence that that the rule of law would prevail and that they could expect justice; the concerned public servants also found greater confidence in being less subject to political interference and the comfort that one did not need to be a sycophant to advance in his or her professional career. This amendment was a significant step for better governance in our country and for halting the slide to the politicization of all our national institutions.

The Eighteenth Amendment

This is why the eighteenth amendment now sought to be introduced is one of the most retrograde pieces of legislation in our nation’s history. It compares with the infamous (twelfth?) constitutional amendment that the J R Jayewardene Government brought forward in 1987 to deal with the Supreme Court unseating of a Member of Parliament elected to the Kalawana seat. That member happened to be a member of the ruling UNP government. The government sought to bring a constitutional amendment, as urgent legislation, to allow the unseated member to sit in Parliament. Being certified by the Cabinet as an urgent bill, the draft bill had to go up to the Supreme Court for a determination. The Bench headed by Chief Justice Neville Samarakoon heard the then Attorney General and threw out the proposed amendment without even bothering to hear the submissions of the Counsel for the intervenient petitioners!

The draft of the proposed 18th Amendment has not been released for public discussion but, reportedly, it virtually repeals the 17th amendment, hailed, despite its correctable flaws, as a fine example of consensus politics providing for better governance. The Constitutional Council, which had a 7-3 majority of persons of eminence and integrity who had distinguished themselves in public life, is to be replaced by a Parliamentary Council of five Members of Parliament. But even this Council will have virtually no powers. The President will propose names that he or she intends appointing as Chairpersons and members of the various Commissions. The Parliamentary Council will have the grand task of making observations on the names. The President will be under no obligation to give any regard to these observations and he could appoint anyone of his choice. Gone will be the whole purpose of the 17th amendment to ensure eminent independent persons to be responsible for better governance and functioning of our public institutions, independent of political interference and control.

The other change proposed in the 18th Amendment is the removal of term limits for the Executive President. The US President Thomas Jefferson’s view on this is very salutary. In the US itself, it was a convention observed by all Presidents that they would not seek re-election for a third four-year term. But Franklin Roosevelt broke this convention when he made use of the World War to seek re-election for a third and fourth term in 1940 and 1944. The US Congress then decided to pass an amendment to their Constitution on 1951 imposing a two term or eight-year limit for their Presidents. Nearly all democracies have term limits for the Executive Presidency. The exceptions have been countries like Uganda where Idi Amin wanted to be President for life and Robert Mugabe now in Zimbabwe. Mugabe began as a much respected and pragmatic leader but sadly too long a spell as President seems to have corrupted him and he now leads a country in shambles, politically and economically. Its currency has had a free fall. Power, wielded over too long a period, tends to corrupt, as Lord Acton said many years ago, and this is what seems to have happened to Mugabe. Let us not allow this to happen here as well. We are not talking here of President Rajapaksa; it can happen in the future to any President.

Having an election at the end of each term will not rid the country of a potentially difficult situation. After all, Mugabe was ‘the official victor’ at every election. At the last Presidential election in Zimbabwe, Mugabe lost to his opponent Morgan Tsvangirai by 48% to 43% in the first round. Since no candidate secured more than 50%, a run-off election took place. And, lo and behold, this time Mugabe secured 86% and Tsvangirai only 9%. Mugabe has been in power for so long that Zimbabwe’s ills are not confined to a collapsing economy but the people have to cope with a frightening security situation – intimidation and disappearance of political dissidents is reported on a regular basis. Tsvangirai himself had been badly beaten up and the wife of another political opponent was burnt alive by a petrol bomb.

Constitutional reform is a process not to be rushed through without public participation. This is what participatory democracy means and this is the only path to unity and reconciliation in a country. That is why we need to say ‘No’ to the 18th Amendment. It is not only what we do but the way we do things that determine who we are. Will our parliamentarians, when faced with a choice, be prepared to stand tall by keeping to their principles?

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