SRI LANKA: The 18th Amendment destroying democracy by manipulation of the democratic process itself 

A simple way of understanding the 18th Amendment is to compare it to the situation in the United States of America. The president of the United States is elected for a term of four years and is entitled to remain in power for a maximum of two terms. This is an absolute limit. Suppose this limit was removed and a US president could contest the election and remain in power for an indefinite period of time. What difference would that make to the entire system of governance in the country; to understand that we have to go into the principle of this absolute limitation.

The principle is that any person who is vested with extraordinary powers should be subjected to limitations and the principle behind that is that no human being is worthy of absolute trust. No one will be trusted with power absolutely. Entrusting power must be accompanied with the placing of limitations to that power. The limitation of two terms was made on that basis. Behind this is the whole notion of binding power. Power should be bound otherwise power can destroy the very things it is supposed to protect.

A nation can be destroyed by the political power of one person. The idea of checks and balances within a presidential system is connected to the placing of limitations on the terms of the presidency. If in the United States the president can remain in power for an indefinite period of time that would affect every institution within the country. The president is only one component of the power of the state. There are so many components that have to function independently if the state has to function correctly, to provide security for the people in order govern in such a way that a society can be managed for its own benefit.

When the head of a state has the possibility of remaining in power indefinitely he will interfere with all the other units; the Attorney General’s Department, the courts, the police, the public service and all other independent components of power. All those components that deliver services will be interfered with when one person has unlimited power.

If the president of the United States of America can be elected indefinitely it would turn the entire system upside down. The system simply cannot function anymore. The ruling individual will become the nation and the nation will be subordinate to this ruling individual rather than this ruling individual serving the nation. This is the whole conception of power that is at stake. The 18th Amendment is challenging 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.

The discussion on the 18th Amendment with this, at this stage is simply irrelevant. If there is a president that is able to stay in power indefinitely whether there will be an 18th Amendment or not is simply irrelevant. It will be dealt with by the president in the same way it was dealt with in the past.

The issue at the moment is not so much on the 17th Amendment but rather the issue of the time limits to the power of the president. If this principle is taken away Sri Lanka will be pushed together with those nations where all principles have been abandoned. In 1978 one of the constitutional experts declared that Sri Lanka was going in the same path as the Central African Republic where Jean Bedel Bokassa introduced a constitution with absolute power. Today it has taken a further step downwards. We cannot remain as a civilised nation if a limit on presidential power is not imposed.

This is not about an individual, this is about a nation. Is the nation more important than a particular individual or not? This is what is at stake. It is a moment of enormous importance and a step taken in the wrong direction can plunge Sri Lanka into political anarchy for many years to come.

Fundamental aspects of democracy that cannot be changed even with a two thirds majority and referendums

One of the lessons that have been learned from history by democratic nations is that under certain historical circumstances democracy itself 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 that there were limitations in their past understanding of constitutionalism and this led to the leaving of 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 entire constitutional law was rethought and new mechanisms were developed to prevent the recurrence of this possibility.

One of the fundamental notions developed was that there are certain fundamental aspects of democracy which should be written into a constitution and these aspects cannot be changed even by a two thirds majority or a referendum.

A major weakness of the 1978 Constitution 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 J.R. Jayewardene was moved by authoritarian ambitions it was not to his benefit to incorporate the developments of democratic nations relating to this important aspect. Thus, the 1978 Constitution left room for the destruction of democracy itself by the manipulation of the two thirds majority and the referendum process.

The limitations on the terms of the presidency and provisions for checks and balances against the abuse of power should be kept as an unchallengeable and unchangeable part of a democratic constitution.

The text of the drafted 18th Amendment can be downloaded here.

YouTube video:

Document Type : Statement
Document ID : AHRC-STM-189-2010
Countries : Sri Lanka,
Issues : Institutional reform,