18th Amendment to the Constitution -A Critique

"Since independence politicians in this country have always found fault with the constitution in force. Consequently the 1948 constitution was replaced by a completely new constitution in 1972 which again was replaced by an entirely new constitution in 1978. The 1978 constitution was hitherto considered the greatest hindrance to good governance."

by Professor Ashley LS Perera

Background

(October 11, Colombo, Sri Lanka Guardian) The 18th Amendment to the Constitution which was recently passed by Parliament with a two thirds majority has removed restrictions on the term limits of the President and has also strengthened his hands by replacing the Constitutional Council by a Parliamentary Council consisting of five members. This Amendment has virtually made the incumbent President the equivalent of a monarch or more precisely an all powerful sovereign head of state. The replacement of the Constitutional Council inter-alia can be considered a threat to the independence of the public service and its politicization with serious implications. What is even more disturbing is the haste in which the Amendment was put through Parliament. The government in fact through devious means steamrolled it through the National State Assembly and forced it on an unsuspecting public extolling its virtues perhaps taking advantage of a widely indifferent public.

The move to strengthen the presidential system has come out of the blue depicting the type of political adventurism associated with our politicians. For well over a decade all political parties except the UNP were clamouring for the abolition of the presidential system of government. The incumbent President in fact was in the forefront pledging to abolish the system at both presidential elections he contested successfully. His present stand is therefore a complete reversal of what he pledged to the nation. It is not unusual for political parties comprising of racists and religious fanatics to support any government move irrespective of its consequences if some concessions, benefits or economic considerations from the government are forthcoming. However it is regrettable that what remains of the traditional left which has always stood for principles is now sacrificing such principles perhaps for power, position and privilege. It is indeed a downright insult to the illustrious left leaders of yore who have steadfastly stood by their convictions irrespective of whatever the consequences.

Since independence politicians in this country have always found fault with the constitution in force. Consequently the 1948 constitution was replaced by a completely new constitution in 1972 which again was replaced by an entirely new constitution in 1978. The 1978 constitution was hitherto considered the greatest hindrance to good governance. But suddenly it has been considered adequate only needing an amendment for the further consolidation of power in the President. It has been observed that on all occasions that a political party was able to muster a two thirds’ or nearly two thirds majority in the legislature the leadership changed the constitution in haste solely for self aggrandizement with attendant problems.

The 1948 constitution by and large can be considered superior to the subsequent ones because the former was based on objective criteria devoid of self interest while the latter constitutions attempted to cater to those in power and was thus subjective in nature. In fact our international reputation as a liberal democracy was tarnished by the failure to include a suitable article to replace section 29 of the 1948 constitution in the subsequent constitution of 1972. This was considered one reason for the Tamil uprising which helped to gain international sympathy for the Tamil cause. This upholds the dictum that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’

The Rationale

A constitution once established is rarely replaced but improved through appropriate amendments as an when the need arises. For instance the British constitution which is unitary in character and flexible in nature has never been replaced although it may have had occasion to improve on it through appropriate amendments. The American constitution on the other hand which is federal in character and rigid in nature has also never been replaced. The rigidity of the American constitution has not permitted many amendments either.

Despite the contrasting nature and characteristics, the British and American constitutions not only uphold democratic ideals with different voting mechanisms but have also survived for ages without any danger of replacement or tampering by ambitious politicians. Wade & Phillips in their book on Constitutional Law observed that “……………. changes in the constitution call for a more elaborate process. This is to ensure that it shall not be in the power of those who for the time being can command control of the legislative organ to vary without special consultation and maybe direct references to the electors, the system and principles of government which have been setup with solemn formalities by agreement between all major political interests in the state.”(sic)

Most countries with the presidential system of government have term limits for Presidents. The American Constitution provides a model presidential system. In terms of the 22nd amendment of the United States Constitution, no person shall be elected to the office of the President more than twice. The Congress passed the amendment in1947 and was ratified by the requisite number of states in 1951. There are some lessons to be learned from the American experience.

George Washington who was President of America from 1789-1797 well over 150 years before the 22nd Amendment saw a two term limit as a convention and a backward against a monarchy. Likewise Thomas Jefferson who was President from 1801-1809 entertained similar views and observed that if a term limit is not fixed by the constitution or by practice the office in fact will become for life. Many other past Presidents stood by this convention although it was not a legal requirement till 1947.

Another salient feature of the modus operandi of the American legislators is their absolutely impersonal approach in the constitutional making process. Thus the 22nd Amendment specifically did not apply to the then sitting President Harry S Truman (1945-1953). A cardinal principle in the formulation of legislation is that such legislation should be impersonal and should not in any manner impact on any individual holding office for the time being. In other words such legislation should not confer any advantage to the current holder of office nor inflict any disadvantage or disability to such person. However the 18th Amendment to the Constitution by not excluding the incumbent President has enabled him to be in contention for an unlimited number of terms as President.

It therefore may be contended that the 18th Amendment has been instituted for the express purpose of conferring an advantage to the incumbent President to seek office through elections for an unlimited number of terms. Such retrospective legislation is not only bad in law but can lead to arbitrariness. It is a violation of the Rule of Law, natural justice and principles of good governance. Even if the incumbent president does not assume dictatorial power there is nothing to prevent a future president from doing so. Therefore the 18th Amendment is potentially dangerous and should have never received the approval of the Parliament.

As stated above the American legislators in their wisdom excluded the incumbent President of America at that time from being subject to the time limit envisaged for future Presidents thus ensuring that the incumbent President shall not be subject to retrospective legislation. This not only depicts the impersonal and impartial nature of the US legislators but also displays the characteristic feature of a cultured liberal democracy where the intended legislation is objectively determined devoid of extraneous considerations. This is in contrast to what happens in lesser democracies like Sri Lanka.

Conclusion

The late JR Jayawardene who made use of the two thirds majority he received at the polls to arm himself with all conceivable powers may have been an unsatisfied man when he had to eventually hand over the presidency to his successor with all that power. Similarly there were many other political leaders who, when not in power desperately sought a two thirds majority in Parliament to abolish the all powerful presidency but once elected to the office of the President shelving such ideas.

Likewise having received a nearly two thirds mandate the incumbent President opted to further consolidate power in the Presidency as one of the first steps after receiving the mandate. Power corrupts and absolute power corrupts absolutely, they say. The incumbent President’s stand to continue the presidency despite his repeated pledges to the nation to abolish it is a gross betrayal of a nation which held him in high esteem. Time alone will decide whether the monster so created will turn against him. What is certain is that this would boomerang on many of the legislators from the opposition ranks who hastily joined the government and treacherously voted for the Amendment perhaps for some undisclosed benefits. They will eventually regret their folly. However, those who voted the turncoats will have to toil a life time to bring about a future government which could muster a two thirds majority to destroy the monster they so created.

(The writer is the former Head of the Department of Town and Country Planning, University of Moratuwa, Director of PG studies and Senior Professor of Town Planning currently engaged in multi-disciplinary research studies)