Basil Fernando, Director, Policy & Programmes, & Rebecca Buckwalter-Poza, Intern, Asian Human Rights Commission, Hong Kong
Sri Lanka has turned out to be a land of many quarrels but no debates. Often quarrels turn into violence, sometimes ending in murder or worse. And the violence itself leads to new quarrels and the circle goes on. Sadly, hardly anything ever turns into a genuine debate. Debate has become a lost art and no one even seems to remember what it is.
Take for example the talk about the constitution. Among the discussions of any nation, those on the constitution should receive the highest place. Not so in Sri Lanka. No one any longer even debates the merits or otherwise of the constitution.
The last debate on the constitution was on the 17th Amendment. There were many who argued for it and they did so long a long time. Interestingly, no one argued against it, which raises questions about what sort of debate it really was.
The government’s argument on the 17th Amendment was that it was good piece of legislation but that there were some defects in it. To cure the defects, the government killed the amendment itself; very much like cutting off the arm to save a finger. In fact, the real problem of the 17th Amendment from the government’s viewpoint was that it tried to impose limitations on the power of executive president. The limitations were on his powers to appoint whomever he wished to important positions in the civil service. The government did not agree with having any such limitations and did not wish to debate them. The government made the decision to kill off the amendment unilaterally and created some pretexts for doing so.
The government in this instance showed the basic mindset that underpins all political life in Sri Lanka today. It decided that it was not possible for it to debate on the need to have checks and balances. But it was not possible for it to say openly that checks and balances were wrong in principle, even if its own position was that having no limits to its power was a better principle for governance and that it is impossible to govern Sri Lanka while trying to abide by the checks and balances principle. Thus, although the government believed that this principle was wrong and had to be abandoned, it had to pretend otherwise. Therefore, there was no meaningful debate over the 17th Amendment, since for the government the only way out was to bluff. As the government had abandoned the principles on which constitutionalism is based, but could not say this directly, then there was by this time nothing to debate about.
Instead of debate, what exists in Sri Lanka today is a smokescreen of quarrels. The style of the media has in recent years changed to reflect this new condition, in order to trivialize everything. Trivialization is an essential component of quarrels, as opposed to debate, and quarrels are in turn used to trivialize various issues. Trivialization in its most advanced forms also necessitates the abandonment of principles of the sort that the current government has become expert in.
Soon there will be some major changes in the constitution of Sri Lanka. However, such changes will not be preceded by any debates. As the proposed 18th Amendment is for the displacement of limits relating to the president’s power, debate would only create problems for the achievement of this plan which cannot be justified on the basis of principles of constitutional law.
The 18th Amendment will fundamentally transform Sri Lanka’s political system, stripping away the façade of democracy. The 18th Amendment will end presidential term limits, eliminate the Constitutional Council, increase the Executive’s control over appointments, and give the President the power to regularly attend and address Parliament. Its effect will be to remove vital checks on Executive power and further undermine Sri Lanka’s imperfect democracy.
Presidential term limits are critical to democratization. The concept of Executive term limits has been a part of discussions of democracy since its inception in ancient Rome and Athens. Without term limits, an individual and party may accumulate tremendous power. Incumbency advantages allow them to increase and preserve that power perpetually. The incumbent may rely on popular support, regime tactics, and opposition fragmentation to stay in office and set the country’s agenda ad infinitum.
The consequences extend beyond the immediate issue of individual accumulation of power over a lifetime. As power becomes concentrated with a single individual and party, the range of views within the party decreases and opposition parties weaken and fragment, diminishing the representation of diverse views in democracy. The weakening of opposition parties undermines electoral choice, as voters have fewer alternatives to the party in power. Government and politics stagnate.
Political party alternation is crucial to the development of a democracy. Political party alternation is more likely when the opposition faces a successor rather than incumbent, both because the successor does not enjoy incumbency advantages and because the opposition is more likely to unify when facing a new candidate.
Political party alternation, or turnover, is not just a symbol of democracy ?it is essential to advancing democratization. Each successful turnover is a demonstration of democracy that increases legitimacy among domestic stakeholders and internationally. Awareness of the potential for turnover also makes officials and political parties more responsive to citizens and more likely to attempt to collaborate and reach consensus with other political parties. Following a turnover, the average improvement in Freedom House scores based on political rights and civil liberties among 20 electoral authoritarian regimes was 0.9 on a 7-point scale. By contrast, there was no improvement in these scores in the three years preceding government turnover in these countries.
In the absence of a Presidential term limit, corruption will increase within and outside of government. As an Executive and ruling party accumulate power, they become more likely to abuse that power. Parties are less vigilant in rooting out vice and officials are more prone to corruption when they perceive little threat of removal or electoral repercussion. Conversely, without the potential for political turnover, businesses and other non-governmental actors have a greater incentive to invest in bribing and corrupting government officials, whose positions are more likely to be long-term and secure.
The end of term limits will preclude institution-building, policy reforms, and training integral to the development of stable democracy in Sri Lanka. Incumbents will have decreased electoral imperatives and become less likely to generate new platforms and policies or improve existing institutions and infrastructure. With a single party remains in power and little turnover among government employees and appointees, relatively few Sri Lankans will acquire the knowledge and experience necessary to become part of democratic government.
The 18th Amendment will also expand the power of the Executive to make appointments, eroding the independence and power of other government actors and branches. The President will only have to seek the opinion of a five-member council comprised of the Prime Minister, the Speaker, the Leader of the Opposition, a Member of Parliament nominated by the Prime Minister, and a Member of Parliament nominated by the Leader of the Opposition when appointing officials to the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission, and the Delimitation Commission. These far-reaching changes in the appointment process will affect agencies and actors responsible for essential human rights infrastructure and the provision of basic services and have the potential to destabilize or interrupt services.
Changes to the appointment process within the 18th Amendment present a special threat to the independence of the Judiciary. The President’s expanded appointment powers will extend to the selection of the Chief Justice and the Judges of the Supreme Court, the President and the Judges of the Court of Appeal, the Members of the Judicial Service Commission, other than the Chairman, the Attorney-General, the Auditor-General, the Parliamentary Commissioner for Administration, and the Secretary-General of Parliament.
Additionally, the 18th Amendment’s expansion of the President’s privileges with regard to Parliament will compromise the autonomy of Parliament. The prerogative to address Parliament and acquisition of full Parliamentary privileges will significantly increase the President’s influence on the Legislative branch, reducing the separation of powers.
Imagine the uproar that would be incited if a President of the United States ended presidential term limits and that individual and political party aggregated political power while the opposition deteriorated. If the President suggested reserving the right to appoint members of all government agencies and judges without any accountability to the opposition or to Constitutional authorities, there would be widespread outrage. If then the President began to address Congress regularly and attempt to participate in its function, Members of Congress would revolt at being subjected to interference.
Presidential term limits are a fundamental feature of modern democracy. In the United States, the 22nd Amendment states that a President can only be elected to two four-year terms; any President who serves more than two years of a predecessor’s term can only be elected once. Although the 22nd Amendment was not passed until 1951, it only reified the two-term limit US Presidents self-imposed historically. Only Franklin Delano Roosevelt, President preceding and during World War II, served more than two terms. The last of the major modern democracies to set term limits, France, did so in 2008.
The majority of transitional democracies and electoral authoritarian governments also have term limits. Over the past few years, attempts to end term limits in Colombia, Kenya, Malawi, Mozambique, Nigeria, Ukraine, and Zambia have failed, with courts and critics citing the necessity of term limits to democracy.
Moreover, the prerogative of the Executive to address the Legislative body is restricted by the Constitution in both the United States and France, among other democracies, to ensure the separation of powers and integrity of the Legislature.
The 18th Amendment will destabilize the Sri Lankan political system. Its effects will only grow with time. The Amendment removes essential limits on Executive power and cripples the Judiciary while reducing the independence and influence of the Parliament; further, it ensures political stagnancy and precludes progress. Political scientist Samuel Huntington proposed a “two turnover?rule: only after two successful political turnovers could a democracy be declared stable. By passing the 18th Amendment, Sri Lanka is regressing, destroying what democratic framework is in place rather than improving it.
The principle that underpins the limitation on terms of office is that any person who is vested with extraordinary powers should be subjected to limitations more generally, and the principle behind this one is in turn that no human being is worthy of absolute trust. No one can be trusted with power absolutely. Entrusting power must be accompanied with the placing of limitations to that power. Behind this is the notion of binding power. Power should be bound otherwise it can destroy the very things it is supposed to protect.
A nation can be destroyed by the political power of one person. When the head of a state has the possibility of remaining in power indefinitely he will interfere with other parts of the state apparatus: the Attorney General’s Department, the courts, the police, the public service and all other components of power. All those components that deliver services to the public suffer when one person has unlimited power through unlimited time in office. The ruling individual becomes the nation, and the nation is made subordinate to this ruling individual rather than this ruling individual serving the nation.
Thus the 18th Amendment challenges one of the most sacred notions that has been developed by civilisation: that power must be bound, power must be limited and that this is the only way to preserve the sovereignty of the people, the independence of the nation and that the power of the individual will not become a destructive force. If this sacred notion is taken away, Sri Lanka will be pushed together with those nations where all principles for the defence of constitutional rule have been abandoned. No nation that abandons limits on power can remain civilised and constitutional.
One of the lessons learned from history is that under certain circumstances democracy can be used in order to destroy democracy. The emergence of Adolf Hitler through popular vote and the subsequent developments brought home to the population in Germany showed that there were limitations in their past understanding of constitutionalism and these provided room for persons with tyrannical ambitions to subvert the whole process of democracy and turn it into fascism.
In the post world war period one of the serious concerns of the German people was to find ways to prevent the possibility of the manipulation of democratic forces to destroy democracy itself. The entirety of constitutional law was rethought, and new mechanisms were developed to prevent the recurrence of this possibility. One of the notions developed was that there are certain fundamental aspects of democracy that should be written into a constitution and these aspects cannot be changed under any circumstances.
A major weakness of the 1978 Constitution of Sri Lanka, by contrast, was that it created room for the easy manipulation of the constitution by the use of a two-thirds majority in parliament and by referendum. As the constitution’s father, J. R. Jayewardene was moved by authoritarian ambitions it was not to his benefit to incorporate democratic ideas that would restrict his powers. Thus, the 1978 Constitution left room for the destruction of democracy itself by the manipulation of ostensibly democratic practices.
The 18th Amendment is a consequence of these historical circumstances. But whereas such an amendment needs to be vigorously debated and fought against, this amendment will be achieved in the midst of some quarrels instead: an amendment introduced as a triviality in the midst of triviality, though its implications for the country are momentous.
