Centre for Policy Alternatives on 25 March, 2011

The Eighteenth Amendment to the Constitution: Substance and Process

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Introduction

The 18th Amendment to the Constitution marks an important event in Sri Lanka’s constitutional evolution. It achieves what one might have thought was previously unthinkable, it makes Sri Lanka’s over-mighty executive even more powerful. The 18th Amendment removed the two term limit on holding the office of the President and removed important checks on the exercise of executive power. Yet, such important changes that have a devastating effect on the democratic process were hatched in secrecy and enacted in to law, with no public consultation and little debate. Key actors that ought to have played a greater role in a process of constitutional amendment, such as the Supreme Court, took little notice of both the substance and process of the amendment. This volume of essays examines the process, substance and political implications of the 18th Amendment.

Chapter I by Dr Paikiasothy Saravanamuttu analyses the implications for Sri Lankan politics and political culture under the 18th Amendment. Defenders of the 18th Amendment argued that since economic development is the overarching priority, a stronger executive as facilitated by the 18th Amendment is required to ensure the political stability that is necessary for economic development. Yet, if one were to look at Sri Lanka’s past, a strong executive under President J R Jayawardene did not translate in to strong economic development. Rather, a stronger executive in part contributed to tendencies towards authoritarianism and insurgencies in both the north and south, which drained the country of many opportunities and resources.  The 18th Amendment also represents both a consolidation of power in the hands of the Rajapaksa family and a transformation of Sri Lanka’s political culture from a vibrant and unruly South Asian democracy to a more homogenous and disciplined East Asian system.

Chapter II by Aruni Jayakody examines the substance of the 18th Amendment. In terms of substance it is important to understand the 18th Amendment as a mechanism that achieved more than just the removal of the two term limit.  In addition to removing the two term limit, it also repealed important checks on executive power introduced by the 17th Amendment.  The President now has unfettered power to make all key public service appointments. For example, the President has been given significantly greater control over the entire legal system, as it is solely at his discretion that the Attorney General, Judges of the Supreme Court and Judges of the Court of Appeal are appointed. Further the 18th Amendment also reduces the powers of key bodies such as the Public Service Commission, Election Commission and National Police Commission. In particular, the Election Commission no longer has the power to prevent the abuse of state resources including state media.  More worryingly the Election Commission has been given power to issue guidelines to not only the state media but also the private media during election times. Thus, not only is the President allowed to run for an innumerable number of terms but the mechanisms that regulate the integrity and independence of elections have also been removed.

Chapter III by Rohan Edrisinha & Aruni Jayakody examines the process used to enact the 18th Amendment. The Amendment was tabled before Cabinet, reviewed for constitutionality before the Supreme Court, debated in Parliament and enacted in to law within a mere ten days.  Such a process violates the first principles of constitutionalism and demonstrates a shocking disregard for basic, internationally accepted norms of constitution making.  The bill was deemed urgent in the national interest in order to expedite its progress through the legislature.  Yet, there were no compelling reasons why the 18th Amendment was urgent or in the national interest.  The Supreme Court as a superior court with special responsibilities as the custodian of the Constitution took little note of the shortcomings in neither the process nor substance of the 18th Amendment.

Chapter IV by Niran Anketell critiques the Supreme Court determination on the 18th Amendment. The determination is sadly noteworthy, for what it fails to state. For example in response to the Intervenient petitioners’ arguments that the removal of the two term limit undermines the sovereignty of the People, the Court was content to note that this was not the case as the voters would be given a wider choice including the choice of a candidate who had already been twice elected to the office. Similarly despite numerous arguments as to the inappropriateness of using the urgent bill process to effect constitutional change, the Court refused to address this issue altogether in its determination. The Court seemed impervious to the argument that the removal of institutions that promoted independence and depoliticisation affected the sovereignty of the People.

Chapter V by Asanga Welikala examines the removal of the two term limit in light of the gradual erosion of the fixed term and offers a comparative perspective on the use of term limits.  With respect to the erosion of the fixed term, the President can now not only run for innumerable number of terms but can also call for elections at the most politically opportune moment after the first four years into a term.  Further a comparative perspective on term limits illustrates that the trend is towards their enactment, reflecting a broader trend in favour of liberal principles and a limited executive.

We have also included a set of documents which are important to a discussion on the 18th Amendment.  These are the texts of the 17th and 18th Amendments; a table that highlights in summary form the substance of the changes brought under the 18th Amendment and the special determinations by the Supreme Court on the 17th and 18th Amendment bills.  We have included the documents relating to both the 17th and 18th Amendments, in order to draw attention to the significance of what has been repealed under the 18th Amendment.

We hope that this collection of essays proves to be a useful tool in facilitating greater understanding of the changes brought under the 18th Amendment.

Rohan Edrisinha & Aruni Jayakody

Editors
Centre for Policy Alternatives
March 2011