• Significant problems with the process through which the Amendment was introduced – it was rushed, not consultative and couched in secrecy. Few outside government even had access to the proposed Amendment before it was sent to the Supreme Court.
• The Amendment goes against the promises in the President's own Mahinda Chintanaya in 2005 and 2010.
• Completely undermines the 17th Amendment, with severe implications for, inter alia , the conduct of democratic elections.
• Cumulative effect of the proposal totally undermines the depoliticisation of democratic institutions.
• Hopes the Supreme Court will say  a referendum is needed before such a fundamental change to the Constitution is introduced.

The 18th Amendment: Constitutional Reform as the Consolidation of Power
September 4, 2010 at 11:29 am · Categories: Colombo, Constitutional Reform, Politics and Governance, Post-War | by Dr. P. Saravanamuttu

Politics is about power and the constitution is about protection of the people against the excessive concentration and exercise of that power. Politicians need power to govern and people need government to establish the framework, which facilitates the exercise and enjoyment of their fundamental rights and freedoms. Whilst it may well be a done deal by the time this gets into print, it is worth still raising the question of as to whether the 18th Amendment to the Constitution protects the people or privileges those in power to the extent that the people’s exercise and enjoyment of their rights could be imperiled.

The key features of the 18th Amendment sent to the Supreme Court for its scrutiny as urgent in the national interest are the removal of the term restrictions on an incumbent contesting the presidency and the abandonment of the Seventeenth Amendment. The former means that we now move from two terms to any number of times for the incumbent for as long as we need him and the latter means that he will have more powers and no independent commissions to act as checks and balances on the exercise of his powers. He will be required to come to Parliament every three months. The Constitutional Council of the Seventeenth will be replaced by a consultative body in the 18th Amendment to be called the Parliamentary Council comprising the Prime Minister, the Speaker, the Leader of the Opposition and two MPs nominated by the last two from communities other than that to which they belong. This body can send the President its observations on his appointments. The police are to come under the Public Service Commission and the Election Commissioner will not have the powers of the Election Commission under the 17th Amendment like for example the power to appoint a Competent Authority to named media institutions should they flout his guidelines.

The rationale for this is the old one trotted out by J.R.Jayewardene. Economic development is the priority and economic development requires a strong and stable executive. At that time we got the executive presidency and two insurgencies. Mahinda Rajapaksha has finished the unfinished business of defeating the outstanding insurgency and wants more power than J.R.Jayewardene. He probably argues that without this Amendment he will effectively become a lame duck president once he takes the oath of office for his second presidential term in November of this year. He probably will argue that his power and authority will not inspire the awe that it should when lesser mortals realize that he is on his way out. The real fear is of a succession fight, even close to home and possibly within the family.

The process of constitutional reform that has produced this amendment is instructive of the measure of democratic governance in the country, any semblance of which could disappear once this amendment is passed. The Seventeenth Amendment has been subjected to intentional violation for sometime, the removal of the term bar surfaced after the elections, went into abeyance and then was obscured by Weerawansa’s antics and the emergence of idiosyncratic and hybrid notion of an executive prime minister. The opposition out of desperation and/or naivete and wishful thinking engaged the president on this only to now find out that this was a cover to secure the desired objective of removing the term bar and depleting opposition ranks to secure the two -thirds majority in parliament to see it through.

This is not the first time that constitutional reform is being enacted for executive convenience. Content aside, the way it is being done demonstrates the scant disregard of the regime for the norms and procedures of democratic governance. It could all happen in the bat of an eye -lid. No one who voted for the great champion of parliamentary democracy and opponent of the executive presidency, Mahinda Rajapaksha were told that this is what he intended within nine months of his considerable if though contested presidential victory. Nor are they being given any time to discuss and digest the implications of this. Compounding the crisis are other political parties and their leaders who instead of being drowned in their private woes should be out there giving leadership to all those who want a robust, functioning democracy in Sri Lanka.

The old left is on record as opposing the executive presidency. What will it do now? Will its two cabinet ministers oppose and walk out of government with honour if necessary? What of the SLMC? It is reported that it will support the amendment and yet remain in the opposition. One can only speculate that underlying this is the fear of a fatal party split. Notwithstanding this, the public position of the SLMC incredibly is of support for the amendment! One awaits their advocacy and defence of this obnoxious amendment on the floor of the House or elsewhere in public.

The Tamil parties are silent. Gone are the days, it seems, when the stalwarts of the Tamil Congress and Federal Party brought their considerable intellect and energies to denounce the erosion of the democratic rights of all of the peoples of this country. Are they not part of this country and part of the Sri Lankan polity, which is in peril? It is not time they are heard in defence of the democratic rights of all Sri Lankans? As for the UNP, are there any leaders in that party who can see a national issue for the priority and emergency issue it is, put aside their petty internal squabbles and demonstrate the leadership of democratic forces in the country it claims to possess? Apart from any other consideration, is this not the basic function, nay duty, of an opposition in a democracy? Only the JVP, so far, has shown that it sees the issue for what it is and despite diminished capacity is exerting itself to do something about it.

This does not absolve the rest of us from our democratic duty of standing up against the erosion of democratic governance. However dispiriting and challenging it may be, we too need to exert ourselves in lobbying MPs to vote against the amendment and our fellow citizens too, if the Court determines that a referendum is required. Leaders of the community, especially religious leaders who are held in high regard should stand up, in this respect, and be counted.

This column warned that Weerawansa alone and “fasting” could be the metaphor for Sri Lanka in the international community. This amendment and the conclusion of the SLFP disciplinary inquiry into the Mervyn Silva tree tying violation of the Rule of Law, soon to be followed no doubt by his reinstatement to deputy ministerial rank, could well turn out to be the metaphor for governance and constitutionalism in the country.
We will never know if we can save democratic governance in this country until and unless we try to do so.