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19A: Without separation of powers, it is tyranny

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Th enactment of constitutional amendments in rapid succession could mean either the constitution is woefully incomplete or politicians are manipulating it to achieve personal or political agendas.  In a society like the United States, amendments add strength to democracy and shut loopholes for the abuse of power. But in Sri Lanka, the history of constitutional amendments reeks of political skullduggery and deception.

Of the 19 amendments made to the 1978 Constitution so far, eight, including the Second Amendment or the infamous Rajadurai Amendment and the preposterous democracy killer -- the 18th Amendment -- could be straightaway identified as being politically motivated ones.  With the exception of the 17th Amendment and one or two others, the rest fall into a murky area where political agendas mix with national security and judicial or administrative reforms. Such is our march towards greater democracy.

Against this backdrop, victory celebrations in civil society circles over the passing of the 19th Amendment may not be totally out of tune, although what was passed is a watered down version of the original draft, which included several progressive clauses that could have been a good first step towards making Sri Lanka a truly working democracy. But, alas, whatever the justifications the opposition alliance – ironically led by President Maithripala Siriseana, one of the prime movers of 19A – put forward in defence of its demand to dilute certain progressive provisions, the undercurrent indicates destructive motives.  

It is high time democracy promotion took centre stage in Sri Lanka’s politics. Our politicians should understand that what prevents them from being statesmen or stateswomen is their lack of commitment to rise above self-centred motives and work for the promotion of democracy which in turn ensures welfare of the people and accountability.

Although the highly devalued 19A was passed overwhelmingly, the debate and the drama behind it show that the urgent need for a quality constitution with a system of checks and balances is lost on the members of the Sri Lanka Freedom Party-led United People’s Freedom Alliance. On the one hand, on the basis of strengthening the authority of parliament, they tried to justify their opposition to the proposed civil-society-dominated Constitutional Council. On the other hand, they opposed the provision that requires the President to act on the advice of the Prime Minister in the appointment of members of the Cabinet though this provision strengthens the supremacy of parliament. But the opposition claimed that it undermined the people’s mandate given to an elected President. 
Lacking clarity, the UPFA’s position lacked nobility or virtue. On the contrary, it pointed to a lack of commitment on its part to bring about checks and balances to prevent a democratically elected president from turning into a dictator. The 19th Amendment in spirit seeks to reset the separation of power doctrine in Sri Lanka’s constitution after it was distorted beyond recognition by Mahinda Rajapaksa’s 18A and other legislation that led to the concentration of power in the Executive branch of government. 


Democracy making or democracy breaking: The debate on the 19th Amendment 

What makes the United States Constitution stand out as the most enlightened document is the commitment of the founding fathers and latter day legislators to introduce, uphold and sustain a proper system of checks and balances to avoid any of the three branches of government becoming a law unto itself. And to date, perhaps with the exception of the George W. Bush presidency -- during which the draconian Patriot Act, which eats into the constitutionally guaranteed freedom of the people, was introduced --  US presidents and lawmakers have been jealously guarding the separation of powers doctrine first promoted as a constitutional theory by French philosopher Baron de Montesquieu. 

James Madison, one of the founding fathers of the US, was a strong advocate of Montesquieu’s doctrine. During the drafting stage of the constitution, he declared: “The accumulation of all powers, legislative, executive and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

The founding fathers of the United States believed that the Government was a trust and that the accumulation of power by a single person or body of government was the greatest threat to liberty. One hopes those UPFA parliamentarians who raised their hands for the ‘dictator-making’ 18A and last Tuesday took away the checks and balances from 19A, would take a lesson from US history by taking another look at their political science or constitutional law notes or reading a book or two or browsing the net.

Surely, as long serving lawmakers, some of those virulent opponents of 19A should know that modern constitutions embody the separation of powers doctrine – though not in the strictest sense --  and the more checks and balances there are, the stronger the democracy will be. 

Should not the President, who condemned, in the strongest possible terms, those who scuttled his efforts to introduce a national medicinal drugs policy and anti-tobacco laws, also condemn, in a similar manner, those who diluted 19A and squandered a golden opportunity to strengthen democracy in Sri Lanka?
In a democracy, amendments to the constitution are made or new constitutions introduced when constitutional inadequacies lead to a deadlock or abuse of power. The 1978 Constitution brought in the provision for referenda and made fundamental rights justiciable because the 1972 Constitution was lacking such key features and the 1970-77 regime had arbitrarily extended the life of parliament. Similarly, 17A was introduced because despite constitutional guarantees, the independence of the public service, the judiciary, the police and the elections commissioner, had been compromised or undermined. The 19th Amendment was also a product of this rectification process. 

In other words, the constitution making process or law making process is one of learning from mistakes.  With the focus now being shifted to the 20th Amendment or electoral reforms, we hope our legislators will learn lessons from the past mistakes and act with responsibility to uphold inclusive democracy. If the 20th Amendment turns out to be disadvantageous to small and minority parties, the legislators will only be dragging the country towards a civil war. The JVP insurrections in 1971 and 1988-90 and the 30-year Tamil separatist war were the outcome of the then governments’ short-sighted policies that failed to make democracy inclusive – or failed to give every segment of society a say in the policy making or in the nation building process. 

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  • sarrij Sunday, 10 May 2015 12:55 AM

    no constitution in the so called democracies is perfect.The USA has a dysfunctional constitution; the Pugh polls suggest that roughly, only about 10% of the population support the congress but about 90% of the congressman get re elected and the old American dream is only a dream.The wealthy families and the corporations have a huge influence over the political system.I agree that the present constitution of SL needs some changes but the greater problem I see is the culture of impunity.


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