Sri Lanka: Power first

By B. Muralidhar Reddy | Frontline
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On September 8, the Mahinda Rajapaksa government in Sri Lanka managed to get Parliament to approve the controversial 18th Amendment to the 1978 Constitution with more than the required two-thirds majority. The government's move has raised serious questions about its priorities and intent. It has belied expectations that the government will move forward towards a resolution of the ethnic problem and has instead sown the seeds of further polarisation.

Thanks to the substantial majority the ruling combine obtained in the April parliamentary election – it secured six seats short of a two-thirds majority – and divisions in the ranks of the dispirited Opposition, the passage of the 18th Amendment was no extraordinary feat. It will make President Rajapaksa vulnerable to the charge of consolidating his own power ahead of working for the much-needed reconciliation in post-LTTE Sri Lanka.

The executive presidency in Sri Lanka is considered to be one of the most powerful institutions in the world. “Barring conversion of a man into a woman and vice versa, I can do anything under the 1978 Constitution,” former President J.R. Jayewardene, the author of the 1978 Constitution, had said. Contrary to the arguments of Rajapaksa's political managers, the 18th Amendment will further strengthen the all-too-powerful President.

One of the key changes made through the 18th Amendment is the removal of the bar on a person who has been President twice to contest for the presidency again. The amendment repeals the existing provision in the Constitution, which states: “No person, who has been twice elected to the office of President by the People, shall be qualified thereafter to be elected to such office by the People.” In other words, Rajapaksa is now eligible to contest the 2016 presidential election. True, it also throws open the field to former President Chandrika Kumaratunga, but the advantages of being the incumbent President are immense. No sitting President who ran for a second term has ever lost in the island nation.

Another important feature of the amendment is the replacement of the Constitutional Council (under the 17th Amendment) with a Parliamentary Council to advise on appointments to key judicial, quasi-judicial and executive posts in the country. The President will head the Parliamentary Council comprising the Speaker, the Leader of the Opposition, a nominee of the Prime Minister (from Parliament) and a nominee of the Leader of the Opposition (from Parliament). The President will seek only the “observations” of this Council in appointing officials listed under the following schedules:

Schedule 1: The Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Bribery and Corruption, the Finance Commission, and the Delimitation Commission.

Schedule 2: The Chief Justice and the Judges of the Supreme Court, the President and the Judges of the Court of Appeal, and the Members of the Judicial Service Commission other than the Chairman.

Schedule 3: The Attorney-General, the Auditor-General, the Parliamentary Commissioner for Administration (ombudsman) and the Secretary-General of Parliament.

Existing provisions in the Constitution had debarred the President from making these appointments. The 17th Amendment to the Constitution had vested the power in the Constitutional Council comprising the Prime Minister, the Speaker, the Leader of the Opposition, five persons appointed by the President (on nominations from the Premier and the Leader of the Opposition) and one person nominated upon agreement by the majority of Members of Parliament (excluding the parties the Prime Minister and the Leader of the Opposition belong to). The rationale behind this provision was to ensure that the bodies functioned independently and their heads were selected through a consultative process.

Under the 18th Amendment, the Cabinet will provide for and determine all matters of policy relating to public officers, including policy relating to their appointment, promotion, transfer, disciplinary control and dismissal. In addition, it will also be responsible for the appointment, promotion, transfer, disciplinary control and dismissal of heads of departments.

The amendment vests enormous powers on the President with only one obligation – that he/she attend Parliament once in every three months. The President will be entitled to all the privileges, immunities and powers of an MP except the entitlement to vote. He/she will not be liable for breach of privilege of Parliament. The President will also have the right to address and send messages to Parliament.

The changes were contrary to the promise Rajapaksa had made in the run-up to the 2005 and 2010 presidential elections. In 2005, he had promised to replace the executive presidency with executive prime ministership. His election manifesto in 2005 specifically said, “I expect to present a Constitution that will propose the abolition of the Executive Presidency and to provide solutions to other issues facing the country.… The new Constitution that would be so drafted would be submitted to the People at a referendum.”

His election manifesto for 2010 again stated, “An open discussion on the Executive Presidency will be held with all parties. The Executive Presidency will be transferred into a Trusteeship….”

In the first round of talks with the United National Party (UNP), the main Opposition party, weeks before the 18th Amendment was introduced, Rajapaksa reiterated his resolve to switch over to executive prime ministership.

The unseemly haste of the President to get Parliament to remove the two-term bar can be gauged from the fact that the next presidential election is due in November 2016. Rajapaksa, who got re-elected in January this year after defeating the Opposition combine's candidate and former Army chief Sarath Fonseka, will begin his second innings in office only in November as per the determination made by the Supreme Court of the island nation.

Rajapaksa had advanced the presidential election by two years, as permitted by the Constitution, to cash in on his popularity as the head of state who led the defence forces in the triumphant war against the Liberation Tigers of Tamil Eelam (LTTE).

It is against this backdrop that serious concerns have been raised about the manner in which Rajapaksa used the strong majority he and his combine got in the January presidential and the April general elections to strengthen his grip on power. The expectation that he would use the historic opportunity arising out of the military defeat of the LTTE to forge a consensus for the much-needed ethnic solution has been dashed to the ground.

The Centre for Policy Alternatives (CPA), an independent non-governmental organisation based in Colombo, noted:

“Given the depth and extent of the changes contemplated in the Eighteenth Amendment Bill, therefore, we find the process adopted for its enactment wholly inappropriate. Once again the procedure for urgent Bills has been engaged, and the conclusion is inescapable that this is to foreclose, or at least attenuate, legitimate public discussion, critique and debate of the substance of the proposed changes.

“It might be added that a similar singularity of purpose has nowhere been in evidence with regard to a new post-war constitutional settlement addressing the challenges of unity, diversity and ethnic reconciliation, which is essential to ensuring peace and the future stability of post-war Sri Lanka.”

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