The 18th Amendment: Has the Opposition missed the woods for the trees?
By Raj Gonsalkorale
The blanket opposition expressed by the UNP and some other opposition parties to the 18th amendment is really an endorsement of the Executive Presidency and all the powers that it holds as per the current constitution. To the credit of the JVP, it is the only party that has consistently opposed the Executive Presidency itself.
The UNP leader Mr Ranil Wickremasinghe, who still dreams of taking over the leadership of the country, at whatever age, wants all the powers that the current President has, and his predecessors enjoyed while in office.
Otherwise, he and the UNP could have argued the point that it is not the Executive Presidency itself that is a problem, but the powers that it currently enjoys. Instead, they and others, including former President Chandrika Kumaratunga, who did nothing to curb some of its powers let alone abolishing it as she consistently, indicated she would do, are engaging themselves in frivolous arguments about President Mahinda Rajapaksa being a President for life and heading towards a dictatorship.
Besides anything else, these arguments are an insult to the voters of the country who have exercised their franchise with clarity and firmness since the country got that franchise in independent Sri Lanka.
President Rajapaksa may or may not wish to have more than two terms as President. If he wishes to have it, the astute voters of the country will have to give it to him. This is a simple and undeniable fact. Mr Ranil Wickremasinghe or anyone else will also have to be given this opportunity by the very same voters.
The issue is therefore not about lifting the two term restriction on the Executive Presidency via the 18th Amendment. It is really a non issue as the voters will be the ultimate determinants who is their choice as Executive President whether its one term or five. The issue is, and should be, about the extra ordinary powers that are provided to it by the constitution, and the lack of such powers given to the parliament.
Many argue and continue to do so, that such Presidential powers were required during the conflict and eventual open war with the LTTE. This is a valid point. However, whether such powers should be vested in one person and whether they are required in peace time, is another matter.
This has nothing to do with President Rajapaksa as he, as an individual, has exercised his considerable powers with care and caution, and many are confident that he will continue to do so in the future. The issue is about giving such powers to the wrong person. Such a person can cause enough irreparable damage in one single term, let alone three or four. One is reminded about the Sri Lankan saying "giving a razor to a Monkey", should Sri Lankans become so foolish to give such powers to the wrong person.
There is however no way at times of knowing who is the right person or the wrong person, especially when someone is being elected for te first time. This is where limiting the powers of the Executive Presidency and introducing checks and balances to make the Executive President more accountable to the representatives of the people, the parliament, become crucial.
As per the current Constitution, the Executive Presidency exercises executive as well as defacto legislative powers by holding ministerial posts. Being responsible for the defence of the country is one thing, but holding ministries unrelated to defence is another, and must be seen as an infringement on Parliamentary power, and accountability to the people although going by the strict law, some may hold the view that the President is also accountable to the people as he/she is also elected by them. No wonder some say the Law is an Ass.
A Parliament may consist of some buffoons, but at least there will be large number of them who hopefully will have some sense to work with those who have some sense to oppose a dictatorial Jekyll and Hyde on the loose as the Executive President. The Parliament therefore should have some overriding powers that could curtail and control activities of an Executive President.
Besides holding ministerial posts, the current Executive President is the Commander of all Armed Forces (as it should be), invariably, the leader of a major political party (this leads to conflicting situations at times about which comes first, the party or the country), responsible for appointing judges to the Supreme Court and the Higher Court (which should only be done on the recommendation of an independent Judicial Commission), and several other written powers as well as unwritten powers that are derived from written powers. The wishes of a powerful President are generally carried out without question by officials unless they wish to be consigned to what is referred to as a ‘sin bin’.
The UNP in particular, and the likes of Chandrika Kurmaratunga are engaged in a deliberate attempt to confuse the people for obvious political reasons, and political gain, and in the case of Mrs Kumaratunga more for personal reasons arising from her animosity towards the current President.
Its Mahinda Rajapaksa that they do not want, not the Executive Presidency, nor all the powers that go with it. Opposing the lifting of restrictions on the number of terms a person can stand for the Executive Presidency by way of the 18th Amendment is only a smoke screen to hide their real intentions. If they were genuine about their intentions, they could have offered conditional support to the amendment by proposing changes to some of the powers of the Presidency, and seeking enhanced accountability to the Parliament.
Even if they did not get their way, at least they would have appeared to have made a strong case for such changes. As thing are, Ranil Wickemasinghe will be seen as the opportunist, the loser, and a man not fit to be the President of the country. He would have enhanced the prestige of President Rajapaksa much to the chagrin of the rank and file of the UNP, many of whom are already disillusioned with his leadership of the party.
As proven many times before, he has once again missed the woods for the trees.
- Asian Tribune -
Comments
The amendment really should
The amendment really should have contained a clause that a person may not contest the presidential election more than twice. This should have prevented Ranil Wickramasinghe from contesting presidential election any more. The so called democrat trying to rubble rouse the masses with bogus propaganda would have shut up for good. Also the bogus General should go to oblivion.
It seems the UNP does not understand for some unknown reasons that they themselves were trying to introduce the same amendments while they were in power. Without even having a proper mandate they created a constitution, and made 17 amendments to it without a referendum they are calling. If not for Premadasa they would have extended the term of office of the President. If not for Premadasa he would have ruled the country for ever. We also know that 2nd term of JRJ he was a lame duck President where power brokers line behind the heir apparent Premadas knowing JRJ is barred from running for office for another term even the masses wanted him to hold office.
CBK did it even worse by reference to SC the validity of her office to be extended. If not for that infamous Sarath Silva she would have ruled the country few more years. Without curtailing a wee bit of her powers now talk about MR as if he is power hungry.
The so called slogan of Independent Commissions, who are independent in these commissions. How on earth these can appointed official over rule the elected members and the executive. The commission members were appointees of various political parties and when is suitable the opposition is trying to identify them as apolitical members. We should not allow these appointed officials of run the government. We should have the system as in the US where the top administration including Attorney General step down to make way for the new administration to appoint competent people of their choice to be appointed to these offices.
We would have seen Ranil
We would have seen Ranil Wickrasinghe if MR was removing this two year limit if in the original constitution limiting the term of the President also had a clause that a person cannot contest presidential elections more than twice. Then he would have joined the MR band wagon to remove that clause without a problem. As the previous writer pointed out this piece of legislation is making the current constitution more democratic vesting more power with the people.
I read with interest the
I read with interest the principles, which the OPA has requested all political political parties to consider in Constitutional Reforms, appearing in the Sunday Island of 5th September 2010. Those principles give a basis for any person interested in studying the existing constitution and the proposed amendments.
My friends in the OPA are unanimous that limit on number of terms is not the issue in question. They say that if the people want a particular person to remain in power as long as they want, then the OPA has nothing to do about it because the OPA is apolitical. What they are concerned about it is politicization of key government institutions without checks and balances like public accountability and also lack of separation of powers.
As regards UNPers supporting the government to get the 18th Amendment through, I can only say that politics have become a dirty game with elected members abusing the people's mandate for personal gains such as getting the personal loans written off, getting overseas treatment for critically ill family members, for getting legal action on frauds and murder against some such politicians withdrawn and for relief by way of free legal assistance in court to save the parliamentary seat. What is dirty in this is that all these guys cite lack of tranparency and democracy in the UNP to cover their real objectives.
Some of these dirty politicians are well known to me personally. "Piyehi vippayogo ducco. Appiyahei sampayaogo ducco."
Recognizing the fact that in
Recognizing the fact that in practically every other position of authority in a democracy like Sri Lanka, a person is permitted to continue in elected office as long as the electors/voters consider the person worthy of the nation's trust by being elected to that office, in my book it is not a matter for such great worry if a President or Prime Minister should also be given the opportunity to contest at an election to remain for longer than the 2-terms that has been the practice thus far. In fact, in a country like Sri Lanka, security and stability may turn out to be the most important criteria for the well being of the people and their development through maintaining a focused direction for the country, than the usual changing of the guard that accompanies the 2-party system at each election, especially when coalitions determine their final outcome. After all. it is still the people who will determine whether or not the incumbent President or Prime Minister will be re-elected. Besides, if a person does a really good job at the helm, why not allow the leadership to continue? What is important is to ensure that transparency and enforcement of law and order are carried out in accordance with the best traditions of democracy, AND that clean elections are conducted. It is these criteria that are important, and NOT the number of terms to which a person is elected. So let us get our priorities straight, recognizing also that some of the reforms needed do require an extended span of time to be put into effect, if Sri Lanka is to really emerge as a country with something special to offer its people and the world. Here is an opportunity to try a slightly different brand of democracy that seems to have worked thus far in Singapore and Malaysia, and is probably better suited to the region's psyche.
Especially now that the UNP has proved that it cannot and will not rise above the fray and offer an alternative, it is common sense to allow what has been delivered to continue.
I agree with the Voyager but
I agree with the Voyager but would like to request him to see beneath the removal of limit on number of terms. It is all about politicization of all powers, which should have been separated and independent if the persons elected by people want to ensure good governance.
Though people can re-elect or reject the President, the new constitutional provisions that politicized the key government institutions will remain until the next revolution.
This is a comment I recieved
This is a comment I recieved from a highly respected retired Civil Servant.
COMMENT ON THE DRAFT 18TH AMENDMENT TO THE CONSTITUTION
President's Power of Appointment
There are three categories of appointment listed in the Schedules to the 18th Amendment: the seven Independent Commissions (Category 1), members of the higher judiciary and the JSC(Category 2), and four scheduled offices consisting of the Attorney-General, Auditor-General, Ombudsman and the S-G of Parliament(Category 3) . Earlier, under the 17th Amendment, the President was obliged to appoint on the nomination of the Constitutional Council (CC) in respect of Category 1 and with the approval of the CC in respect of the other two, before making such appointments. The IGP who was in Category 3 in the 17th Amendment has been dropped from the Schedule in the 18th Amendment and is now to be appointed unilaterally by the Executive President.
Now, the CC stands abolished. The President is free to make appointments to the Commissions (Election, PSC, Police, Human Rights, Bribery, Finance, Delimitation) and the offices listed above after a mandatory consultation process prescribed in the 18th Amendment. With the blanker repeal of Articles 41A to 41H the provision that the appointees shall be persons of eminence and integrity who have distinguished themselves in public life and are not members of a political party is no longer there. Thus the possibility of unsuitable appointees and politicization of the Commissions as well.
The Consultation Process: Parliamentary Council
In making the above appointments, the President, after making due inquiries as he may deem fit, will propose persons and seek the observations of the Parliamentary Council. The Council comprises the PM, Speaker, Leader of the Opposition, a MP nominated by the PM, and a MP nominated by the Leader of the Opposition. In making the nominations to the last two slots it has to be ensured that such persons belong to communities other than those to which the three ex-officio persons belong. The two nominated MPs may be removed at the discretion of the President from the membership of the Council.
The Council acts as a collective body, which means decisions will be guided by the majority principle. And, the Government will enjoy a majority in the Council. When the President seeks the observations of the Council in respect of appointments to the Scheduled Commissions, the Council is obliged to convey such observations through the Speaker within one week. In the event of a failure to so convey the observations, the President will be free to make the appointments as proposed by him. In any event, because of the in-built majority enjoyed by the Government this consultation may become a mere token excercise.
In summary, the President identifies the persons to be appointed, sends their names for observations of the Council and having considered these observations finally decides on whom to appoint. He takes the initiative and has the final say. Under the 17th Amendment it was the CC that took the initiative to recommend persons for appointment to the Commissions.
Public Service Commission
The changes to the PSC brought about by the 18the Amendment are important. As before there are nine members who serve for three years, who are appointed by the President this time after consultation with the Council. As was the case under the 17A, the Cabinet determines all matters of policy relating to public officers. Also as before the Cabinet is vested with the power of appointment, transfer, disciplinary control of all heads of government department whereas all such powers in respect of all other public officers are vested in the PSC.
Three important changes are observed. Police officers who formed a special category under the 17th Amendment (i.e. neither armed forces nor public officers) have been brought within the definition of public officer. The second change is that earlier PSC members could not be removed by the President without the prior approval of the CC. Now they serve at the pleasure of the President, unless Parliament by law provides for the manner in which they are to be removed, which is highly unlikely in the present Parlament. The third change is that the delegation of powers of the PSC to Committees and public officers will be determined by the Cabinet. For example, all powers of appointment and dismissal in respect of police officers may be delegated to the IGP at the discretion of the Cabinet. Earlier the PSC decided on the nature and extent of delegation, not the Cabinet.
Election Commission
In this case the changes are few. The number of EC members has been reduced to three, whereas under the 17th Amendment it was five. The President appoints the EC after consultation with the Council. The members serve as before for five years. The security of tenure that was provided by the 17th Amendment has been preserved in that the procedure relating to the removal of members of the higher judiciary from office will apply to EC members too. This is a very important safeguard.
The most important change is that at election time the EC will not be able to give blanket prohibitions on the transfer and appointment of public officers including police officers. This was an important safeguard to prevent politically motivated interference with the Public Service and Police during an Election.
On the issue of control of the media during election time, the distinction between state media and private media has been done away with, especially the references to SLBC and SLRC in the 17th Amendment.Any guidelines issued by the EC will apply to all media, both state and private. Perhaps, a welcome change is the provision for the President to appoint a Deputy Commissioner to the post of Commissioner of Elections pending the constitution of the EC, thus providing the much wanted relief to the incumbent Commissioner. The provision for the appointment of a Competent Authority to state media institutions in case of failure to adhere to the guidelines has been removed.
Police Commission (PC)
The PC which wielded considerable influence over the police service under the 17th Amendment has vastly reduced powers in the 18th Amendment. Its only functions are (a) to entertain and investigate complaints from the public against a police officer or the police force and (b) provide redress according to any law passed by Parliament. If Parliament is tardy in passing such a law the PC could soon lose faith in the eyes of the public.
Providing protection to the public from the excesses of police officers is one of the most daunting tasks of good government. The police service works as a unit; it has the power and the muscle to protect its own. It relaxes this rule only in rare instances such as the Angulana murder case. Even politicians are beholden to them despite the outward show of deference shown to politicians. In this context, how does a toothless Commission protect the citizen when it has no power to take disciplinary action against a police officer, or even transfer an officer under investigation? Even the PC formed under the 17th Amendment, with its extensive powers, found this task to be formidable. How can an emaciated new PC face up to this challenge?
Status of the IGP
In regard to the IGP and the police department the 18th Amendment sends conflicting signals. Under the 17th Amendment, IGP was a scheduled post along with the Attorney-General and Auditor-General. Now the IGP has been removed from the Schedule. His appointment by the President in terms of Article 61E does to require prior consultation with the Council. Earlier, under the 17th Amendment, his tenure along with that of the Attorney-General was protected by the Removal of Officers Act, No 5 of 2002. He could not be summarily removed. Now he holds office at the pleasure of the President – not a desirable situation.
In an early draft of the 18th Amendment, there was a proposal to transfer all powers of the Police Commission (other than the grievance mechanism function) to the IGP. Although this proposal as been dropped this could still happen (after the 18th Amendment is passed) through a delegation process initiated by the Government. In fact the earlier draft is an indication of the military type command structure that the Government had in mind for the police force. Obviously, saner counsel has prevailed for the present, but this proposal may be put in place by indirect means later.
Assuming this gloomy prognosis the question that arises is whether it is prudent to confer such vast powers affecting society on an official whose tenure is not secure and whose position is vulnerable and beholden to the Executive for his appointment, extension of service and removal.
Transformation of the Police Department
Given this context the Police Department may undergo an ominous transformation. Up to now it has always been regarded as a civilian department. All personnel matters were handled under the direction of a civilian PSC or, later, Police Commission. Appointments and promotions to senior positions, other than the IGP, were the direct responsibility of these Commissions. The IGP played only an advisory role. In the future, the situation could change with the IGP controlling all appointments and promotions. Though nominally all police officers are deemed to be public officers, they will function under a military style command structure with the IGP at the apex. Appeals will lie to the PSC and AAT, but the feature of command control will be more pronounced.
Conclusion
There are three features in the 18th Amendment which taken in isolation are innocuous, but when taken together cause concern. The first is the natural desire of any politician to perpetuate his power (the present UNP leader is also a case in point). For this purpose the restriction on the number of terms any person can be President is to be removed.
The second is the ability of the EC to conduct free and fair elections. This will depend on the integrity of the three Commissioners. Very probably initially three good choices will be made in consultation with the Council. But the crunch time will be about five years hence when the first set of Commissioners will go out of office and the parliamentary and presidential elections will begin to show on the horizon. Who will be the Commissioners at that stage? Will they be persons of integrity or malleable persons who could be influenced? We must not forget the perennial wisdom handed down to us by Charles Montesquieu that every person vested with power tends to abuse it.
The police department is getting ominously into a semi-military command structure. The person at the top is nominally powerful but lacks security of tenure. And, we know from the experiences of the Referendum of 1982, and the Wayamba PC election that the fairness of an election process is very much dependent on the impartiality and integrity of the police service. The EC can do very little without the unstinted cooperation of the police to ensure a free and fair election.
Taking all these features together the unmistakable trend is that we are drifting towards unfettered Executive Power with total politicization of the Public Service and Police. If an Executive Presidential System is to be retained this must be linked to a robust Legislature with accountability and checks and balances. These checks and balances are not there in the draft 18th Amendment to the Constitution.
My comments were specific to
My comments were specific to the Presidential term limits issue, as I see reelections of an Executive President of whom a nation approves, as being compatible with regular democratic practices. There is no reason to demand term limits towards enforcing change for its own sake.
As for the 18th Amendment in relation to appointments to the Commissions - I think that while the Commission Chairs should be through nomination by the President as he/she needs a team that is compatible, it must be with open hearings and with the approval by Parliamentary Committees (or other bodies that are constructed with balanced representation) in the same way that the process occurs in the US, thus providing the checks and balances necessary.
The Opposition abdicated its responsibilities by walking away without presenting its position at a debate. Unfortunately, INSTEAD OF DEBATE, THE OPPOSITION ONLY RESORTS TO PROTEST with public protest marches etc. This is counter productive and only leads to the Govt. countering and quelling these organized protests from getting out of hand through law enforcement, and also with efforts towards greater power concentration in order to make things work. When that happens, there are shouts and allegations of hijacking power!
Thus, the problem is that politicization has eroded democracy to such an extent that the constructive balance that is provided by the Opposition does not occur, and the Opposition only functions counter-productively by resorting to using the PUBLIC as a tool to gain the Opposition's ends, which is to overthrow the existing govt.
THIS THEN BECOMES DEMOCRACY AT ITS MOST IRRESPONSIBLE AND MOST PERVERTED!!
Gamarala is trying portraying
Gamarala is trying portraying his ideas on the back of this pseudo highly respected civil servant. Why this civil servant is hiding if he is highly respected and why he has to choose Gamarala to echo is sentiments. This notion that everybody says to, he said so, reliable sources said so is long gone, and we are only interested to read salient facts, not opinions of people who wish to sway thoughts of people for money and prominence.
First this so called public servant is not elected by the people and not answerable to anyone in staging his views. He can be a paid servant of some invisible financial resource even LTTE. However, the so called independent commissions we had were only an illusion. All the members who held such appointments were parasites of respective parties. How can a person appointed for such commissions over ride the legislature. The present system is more democratic and accountable for people power.
This civil servant may be having selective brain loss. The whole JRJ constitution of 1978 was showed on people without a referendum so to speak. Such approval was not needed to ram through another 17 amendments. How come only this piece of legislation need such approval.
We should have term limits for people contesting Presidential Election, so undesirable people cannot continue to contest hoping to corrupt the system of election. The UNP who is trying to portray as the more Democratic Party was sneaky to enter into CFA without prior approval of the parliament, even afterwards for not having ratified.
Sarath Fonseka is another joker who comes up with different suggestions every now and then. Suddenly yesterday he remembered that he has taken 2 Kg of gold home as dowry to be given to his daughter who married Danuna Thilakeratne. This is like his White Flag storey which Federica Janz pin him in style. However, we lost GSP concession due to his ignorance and vindictive actions of Ranil Wickramasinghe.
By absenting to vote, the UNP also have given the nod for the 18th amendment. UNP with a life leader in the party must be joking when they talk about democracy. The UNP democracy is only for others and not for themselves. It is the same with constitution. When someone else ascends to the office of President out of their clan, it becomes a bad constitution. Some media is trying to portray as Ranil Wickramasinghe was against the constitution from the beginning. None of us saw that when he was a junior minister in JRJ government who was praising the menarche and being an architect of the 1978 constitution. For 17 long years he said nothing about the constitution when UNP was in power.
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