by Kishali Pinto Jayawardene(September 05, Colombo, Sri Lanka Guardian) There is a certain bitter irony over the weeping and wringing of hands indulged in by some this week in respect of what the draft 18th Amendment to Sri Lanka's Constitution seeks to do to the country's constitutional structures.
Early experiments in devaluing democracy
In the first instance, the utter consternation that is being expressed over this constitutional amendment is hard to understand in the natural order of things. The 18th Amendment Bill, in all its deeply subversive glory, is only a logical culmination of the deliberate displacing of Sri Lanka's constitutional institutions, (with our blessings as it were), over the past decade.
History would record that the first danger signal came in 1999 when the appointment of a Chief Justice by former president Chandrika Kumaratunge weakened public confidence in the apolitical functioning of the courts. Like Pontius Pilate, there are many among us who cannot disclaim responsibility for the undermining of the judiciary during that period, wash their hands desperately as they may.
The 17th Amendment, passed by Parliament in 2001, was the one hope that the country would pull itself back from the brink during that time. Thereafter it was Kumaratunge who was responsible for the first crack in the 17th Amendment by declining to appoint the Chairman of the Elections Commission on her Presidential watch, even though the nomination was made duly and properly by the Constitutional Council. Kumaratunge was unceremoniously tossed out of office by her former (judicial) protégé in 2005.
But emboldened by the easy success of these experiments in devaluing democracy, Kumaratunge's successor, President Mahinda Rajapaksa, went a step further. Brushing aside the mandatory requirement of approval by the Constitutional Council required under the 17th Amendment to the Constitution, he made his own appointments to the earlier independent commissions on the police and the public service, the judiciary and the National Human Rights Commission.
Weak and faltering opposition
This was the preliminary testing of the waters, so as to speak, in relation to an even greater departure from the constitutional norm. Opposition to these actions was weak and faltering, both from the political parties as well as from the so called watchdogs of society, namely civil society, the academia, the media and professional associations. Lawyers (including a former president of the Bar Association) and retired judges jostled with each other to accept unconstitutional appointments to the commissions.
The main opposition, the United National Party did not take the discarding of the 17th Amendment as a primary rallying point and it was left to one of its senior frontliners, Karu Jayasuriya to hold forth almost singlehandedly on this point. The Janatha Vimukthi Peramuna, (the 17th Amendment's most enthusiastic backer initially), also hemmed and hawed on its proper implementation.
With such a dismal resistance, the stage was set for a more definitive political drama with appointments not being made at all to the National Police Commission, the National Human Rights Commission and the Bribery and Corruption Commission. This process has now culminated in this proposed 18th Amendment Bill and the constitutional entrenching of authoritarianism in its most aggravating and chilling forms.
The point however is that this draft constitutional amendment did not emerge suddenly out of the clear blue sky, as it were. There is a specific history and a specific background to its emergence. So, why should anyone express consternation or dismay at this point? Did we really expect that, after such tremendously successful attacks on constitutional institutions over a long period with nary a whimper of protest or effective stirring of our collectively deadened conscience, the administration would magnanimously wave its magic wand and bring institutional democracy back, out of the immense goodness of its heart when the war ended last year?
Taking naivete to an extreme level
Did we expect that when we cheered the Rajapaksa administration to casually dismiss patterns of extrajudicial executions and enforced disappearances as collateral damage and abused those who called for accountability from state sponsored executioners, that the authoritarianism would stop there? Did we expect that when we justified assassinations of editors and the beating and hounding of journalists as inevitable or when we jeered when a journalist of Tamil ethnicity was arrested and sentenced to twenty years imprisonment based on one or two articles that he had written on the travails facing the people of the North and East to a little known magazine, that the danger would stop there? This is, if one is being charitable, to take naivete to its most extreme level.
And in this context, the government is not engaging in lessons learnt and reconciliation on the one hand while perpetuating unabashed executive authoritarianism on the other. The Lessons Learnt and Reconciliation Commission is merely a shrewd and successful exercise in deflecting attention away from constitutional reforms that will forever change the nature of our political society.
Tossing away constitutional safeguards like garbage
The draft 18th Amendment tosses away the safeguards of the 17th Amendment in regard to Presidential authoritarianism like so much constitutional garbage. The Constitutional Council which acted as a fetter on Presidential discretion in making appointments to key positions in the judiciary, the public service and important constitutional commissions, is replaced by a veritably toothless five member Parliamentary Council whose observations on the pending appointments may be called for and then thrown into the wastepaper basket.
That by itself, would have been scandalous enough. But the cynics may have been inclined to dismiss such doomsday warnings if the Bill had not coupled these changes with the abolition of the two term restriction contained in Article 31(2) of the Constitution. It is this abolition which takes the 18th Amendment Bill from being scandalous to a new and hitherto unprecedented level of positively dangerous.
Coupled with the immunity that is afforded to an Executive President this Amendment will result in a virtual monarchy. Cosmetic measures such as bringing the President before Parliament are precisely what they are, namely a superficial gloss over the fact that the Presidency would far override Parliament and would be uncontrollable in the worst possible meaning of the term.
Revealing the nature of the monster
With an independent Elections Commission and a Police Commission thrown to the winds, the deletion of the number of terms that an incumbent can contest means that a sitting President will have all the huge state resources at his will, including the state media, police officers and public officers to subvert the results of an election whichever way that he pleases.
It is clear therefore that the nature of the monster as fully revealed cannot be accepted in selective doses, though we may like to or prefer to. In this 18th Amendment Bill, we see the designs of the Rajapaksa Presidency exposed in its most naked and visceral manner. The responsibility of creating the situation that made it possible for such an amendment to be presented in Parliament and for the political context which makes the passing of such an amendment with a two thirds majority, a given, must therefore be ours and ours alone.
There is none among us who could wash his or her hands of the responsibility of ushering in an era of monarchical despotism despite futile wailings at the proverbial eleventh hour.
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