Another check and balance to be lost

by Jehan Perera

(August 31, Colombo, Sri Lanka Guardian) The government’s decision to amend the Constitution to permit the incumbent President to seek office for more than two terms and to do away with the 17th Amendment to the Constitution that limits the President’s powers of high level state appointments was not unexpected. In January this year President Mahinda Rajapaksa won a second term of six years. He won this election by a large margin, although under controversial circumstances in which the government utilized the state machinery to ensure his victory. The Opposition claimed electoral malpractice that extended to rigging of the count, but failed to furnish convincing evidence. However, most election monitors noted widespread violations of the election laws. One of the main infirmities of that election was the absence of an independent Election Commission with the power of corrective action, as mandated by the Constitution.

The violation of election laws and the progressive debilitation of the system of checks and balances in Sri Lanka’s democracy preceded President Rajapaksa. The promulgation of the so-called autochthonous or "home grown" Constitution of 1972 was a turning point. That Constitution put the Executive branch of government firmly in the saddle and made the positions of the Judiciary and Public Service subordinate to it. The unanimous passage in Parliament in 2001 of the 17th Amendment to the Constitution was a belated recognition of the need to ensure checks and balances to the power of the Executive, which had got increasingly concentrated in the hands of the President. This constitutional amendment sought to ensure the independence of the Judiciary, Public Service, Police and Elections Commission in particular.

Unfortunately, the 17th Amendment was not fully implemented after 2003, first by President Chandrika Kumaratunga under whose government the amendment was made, and later under President Rajapaksa. It is being fully violated today and has become an international embarrassment to the government. A government that is intentionally violating the Constitution will fail any international test of good governance. This has led to severe penalties, such as the EU’s withdrawal of the GSP Plus tariff concession. One of the constitutional amendments being contemplated today is the abolishing of the 17th Amendment or its transmutation in a manner that will once again give the President the legal power to decide on who is to be appointed to those state institutions that can be a check and balance on his powers.

International Practice

Until the government announced its decision on constitutional reform, there was hope that a statesmanlike solution would be found. The talks that President Rajapaksa had with Opposition Leader Ranil Wickremesinghe only a few weeks ago appeared to be very promising. Media footage showed the two leaders and their teams of negotiators in warm and smiling settings. There were reports of agreements that included the abolishing of the institution of the Executive Presidency and its replacement with an Executive Prime Minister, as well as give and take on the issue of the implementation of the 17th Amendment. The changeover to an Executive Prime Ministerial system, in which the Executive would be subjected to the checks and balances of an empowered Parliament and Judiciary, seemed to be a viable option. President Rajapaksa himself had campaigned at the Presidential Election of 2005 on a platform that included the abolishing of the Executive Presidency.

Limits on the term of the President are found in most countries with a powerful Presidential system. The best known example is that of the United States where a President can only seek office for two terms of four years each. The reasoning is that absence of change in an office in which power is so concentrated is a recipe for abuse of power and possible dictatorship. The only U.S. president to serve beyond two terms was Democrat Franklin D. Roosevelt, first elected in 1932, who remained in office until his death in 1945. President Roosevelt’s long tenure in the White House prompted the opposition Republican Party to pursue passage of the 22nd Amendment in 1947, with the law going into effect in 1951. The rationale for the amendment was that it would prevent future presidents from attempting to claim dictatorial powers.

America’s first president, George Washington, could have stayed in office, perhaps for as long as he wanted to, since at the time the United States had no term limiting law and the highly popular President would have faced virtually no opposition. But after two terms, President Washington returned in 1797 to his farm in Virginia. He set an example of humility and country-before-self that continues to resonate in the American ethos. Term limits are also common in Latin America, where most countries are also presidential republics. The President of Mexico is limited to a single six-year term. The same holds true for Philippines in Asia. On the other hand, President Hugo Chavez of Venezuela was successful in getting the two term limitation on the presidency lifted through a referendum. Countries which operate a parliamentary system of government are less likely to employ term limits on their leaders. This is because such leaders rarely have a set term, enjoy less unilateral powers, and can only serve as long as they have the confidence of the Parliamentary majority which is a check and balance on them.

Public disquiet

The talks between President Rajapaksa and Opposition Leader Wickremesinghe were welcomed by most sections of civil society as the way forward for the country in facing the international and local challenges of post-war reconstruction and development. There were sceptics who pointed to the experience of 2006, where the same President and same Opposition Leader attempted to negotiate a bipartisan political position on the intensifying war and a political solution to the ethnic conflict. At that time President Rajapaksa did not have a solid majority in Parliament to govern effectively. Those talks gave the President the time and space to win over 17 opposition members to the government, which gave his government a decisive majority in Parliament. Unfortunately, it appears that history has repeated itself, with as many as 11 opposition parliamentarians giving their assent to cooperation with the government in giving it the required 2/3 majority in Parliament to effect constitutional change.

With the support of the defectors from the Opposition the government appears to have a safe margin to take it over the 150 votes in Parliament necessary to enact constitutional amendment. At the last General Election, the government alliance obtained 144 seats, and so it can now expect up to 155 votes in the 225 seat Parliament. There is speculation that more opposition parliamentarians will be waiting to support the government in the hope of accessing governmental patronage in the future. It is widely believed that the government is at the height of its popularity and strength, and will move swiftly to enact the constitutional amendments within the course of the coming month. However, there is also a possibility that the government may proceed more cautiously than anticipated. This is because there is little or no popular support for the proposed constitutional amendments.

A limited opinion poll conducted by a newspaper has revealed that 90 percent of those polled rejected the amendment of the two term limit on the Presidency. At the Presidential Elections of 1999 and 2005, the winning Presidential candidates, including President Rajapaksa, pledged to abolish the Presidency itself if elected. They both described it as the fount of evil due to the over concentration of power. Alliance partners of the government from the left parties have publicly expressed their disquiet over the proposed amendments which have not been placed before the people for debate and discussion. Countries with stable and successful political systems have engaged in mass education and public consultations for a considerable period of time prior to changing the Constitution. Venezuelan President Chavez was democratic enough, and confident of his personal popularity, to hold a referendum on the issue. Constitutional amendments that are hatched in secret, and do not have public acceptance and legitimacy, can be repealed in the same way tomorrow when the political balance changes.