Coming Constitutional manipulation!

7 January 2020 

Sri Lanka is one of these countries, where the Constitution, the mother of all laws, has always been a bone of contention – from the very day of the independence up until now.

From the very beginning, Jaffna Tamil elites who opposed it, demanded, at first, a 50-50 representation, an artificial majority to counter the demographic preponderance of the Sinhalese majority, and later, a varying degree of self-determination and finally a separate state.

Though the Sinhalese elites were not receptive to these demands, they indeed benefitted from the overall delegitimizing effect the Tamil Nationalist campaign had on the Constitution.

Since then, Sri Lanka has been through a vicious cycle of tampering with the Constitution. Each one of these was a self-seeking exercise that eroded the checks and balances and centralized the power at the hand of the executive. They paved the room for further manipulation, in the name of rectifying previous errors.

Now the policymakers of all sides accept grudgingly that the first constitution of Sri Lanka (then Ceylon) the Soulbury Constitution was the best Constitution this country ever had.

Last week, when President Gotabaya Rajapaksa ceremonially opened Parliament, he arrived in a simple motorcade, eschewed ceremonial gun salutes and other pomp and pageantry.
He delivered a policy statement, which in most ways sounded statesmen-like. However, behind all niceties, trappings of absolute power loomed large in the shadow. 
Relegated to the bottom third of his policy statement, the President mooted the possibility of a new Constitution.

Even though elections can be won through numbers, an unstable Parliament that cannot take clear decisions and remains constantly under the influence of extremism is not one that suits the country

This is what he said:

“The success of a democracy rests upon the Constitution. The 1978 Constitution, which has since been amended on 19 occasions, has given rise to many problems at the present time because of its inherent ambiguities and confusions.”

“In order to safeguard the security, sovereignty, stability and integrity of our country, it is essential that changes be made to the existing Constitution.”
“Whilst preserving the positive characteristics of the proportional representation system, electoral reforms are needed to ensure the stability of the Parliament and to ensure the direct representation of the people.”

“Even though elections can be won through numbers, an unstable Parliament that cannot take clear decisions and remains constantly under the influence of extremism is not one that suits the country. We can solve this problem through constitutional reforms that will establish a strong executive, legislature and an independent judiciary that can ensure the sovereignty of the people.”

Earlier on several occasions, he had described the 19th Amendment as a ‘failure’ and said that he would scrap it if the ruling party obtained a sufficient majority at the General Elections.
Taking a cue from the Head of the State, Wijedasa Rajapaksa, a serial pole-vaulter MP, has now presented two Constitutional Amendments, one that envisages reverting the 19th Amendment- which clipped the powers of the Executive Presidency and established Independent Commissions.

A second Amendment envisages increasing the minimum vote of five percent of the total polled vote that a recognized party is required to obtain to be elected to Parliament to 12.5 per cent.

The proposed 22nd Amendment to Sri Lanka’s Constitution will end powers of the Constitutional Council in appointing Independent judges, the Police Chief and Senior Government Officials, instead of entrusting the said authority with the President. It will also allow the President to hold Defence and other Ministries.
The proposed 21st Amendment will increase the minimum of 5% of the total votes polled that should be secured by a recognized political party or independent group, for a candidate from that party to be elected to 12.5 per cent of the total votes polled in any electorate.

The 21A would effectively decimate the Parliament representation of smaller parties such as the JVP, and also Tamil and Muslim parties outside the North East. 
The 22A would weaken the independent institutions and concentrate powers of the State at the hand of an all-powerful President. Sri Lanka would be back to where it started in 2015.
Sri Lankans of all political affiliations should be worried about the looming danger. A calculated malicious attack on the country’s independent institutions is in the making. They are at the risk of being stripped of their independence and turned into a rubber stamp of the executive.

More than anyone else, President Rajapaksa should know the importance of Independent Commissions. Without Independent Courts and the Election Commission, he might be in jail, let alone running for the Presidency.

He used the recourse to law to the fullest extent, the best legal advice and survived a series of court cases. He competed on a level playing field at the Presidential Election and even had the upper hand over the ruling party candidate throughout the election campaign.

None of such luxuries was accorded to his predecessors, much less under the reign of his brother’s presidency.
Most political leaders have a dangerous temptation to kick the ladder that helped them to get to the top. Such interferences have created deeply flawed States.
In the Arab world, elections were often caricatured as ‘one man, one vote, one time only’. Such political systems were seen as a sham and their leaders as pariahs, except when they were useful allies in the balance of power politics.

Whether President Rajapaksa agrees or not, Sri Lanka has progressed a great deal in terms of the reputation of its institutions and its political system in the eyes of the civilized nations of the world. That had little to do with the niceties of Ranil Wickremesinghe and Maithripala Sirisena, instead, the catalyst is the independent institutions that checked their temptation for absolute power. It was partly due to this institutional empowerment and independence that his government could successfully expose the hoax of an abduction of a Swiss embassy staffer.
Now, it seems the President and his coterie are plotting to undo these achievements – simply because these provisions in the Constitution keep them under check.
It is, however, a long way from the proposed constitutional amendments or a new Constitution coming to effect.

First, it needs a two-thirds majority in Parliament. Winning that at the General Election is a tall order even for Gotabaya Rajapaksa.

Then, Prime Minister Mahinda Rajapaksa, a shrewd operator of power, might not like the fact that the concentration of the power at the office of the presidency comes at his expense. He might undermine the process.

For his first month in the office, President Rajapaksa has strived to stand tall over partisan politics. Some might think he would eschew excesses and abuses of his predecessors, even if he is bestowed with absolute power. If lawmakers are angels, countries need no Constitution. But, humans are fallible and Mr Rajapaksa has a history. If he has his way on this, Sri Lankans as a whole would be the losers.

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