Sunday Times 2
Stay awake: Dictators’ dreams are nightmares for people
It is election time once again and the President’s party is seeking a two-thirds majority for the purpose of establishing a stable Government by amending the Constitution to strengthen the Executive Presidency. A Constitution is a document which guarantees the rights of a citizen by limiting the powers of the Government. The history of the British Constitution is one of centuries of conflict by which the common people wrested power away from the all-powerful monarch. The history of liberty is the history of limitation of Governmental power; not the increase of it.
Because of the 19th amendment, the threat to democracy following the 2018 constitutional coup was neutralised
A dictator’s idea of paradise is where he has absolute state powers and no critics. His idea of a patriotic citizen is one who is loyal to himself; not one who pledges allegiance to the country.
Different constitutions have different ways of dividing the powers of the state. Most constitutions divide the powers of the state vertically, according to the classic French concept of separation of powers, into the three main branches of Government, i.e, the Executive, the Legislature and the Judiciary. State power is horizontally divided by devolution, i.e, by the allocation of certain powers to sub-national units. To concentrate all powers in one individual is what is called a dictatorship.
Since the enactment of the second Republican Constitution of Sri Lanka in 1978, almost every election manifesto pledged to abolish the all-powerful executive presidency established thereby. Over the decades, the powers of the executive presidency and the central Government were gradually reduced. The 13th Amendment devolved certain powers to the provincial councils while the 17th Amendment diluted the grip of the Executive President in the appointment of officers to certain vital positions in the state services by the creation of a Constitutional Council and a number of independent commissions.
The 18th Amendment reversed this trend and in fact made the Executive President more powerful than under the original constitution in 1978. It abolished term limits for the President and replaced the Constitutional Council with a “Parliamentary Council”.
Main features of 19A
The 19th Amendment was enacted at a time when democracy was greatly weakened by the 18th Amendment. The main features of the 19th Amendment should be carefully assessed to figure whether it in fact destabilises the state.
The most important feature of the 19th Amendment is the restoration of the Presidential term limits. Political power is highly addictive and most people who have once tasted such authority would not like to surrender its powers and privileges. A dictator’s greed to hold political power permanently may not be confined to his lifetime, but may extend even to his descendants. It is in recognition of this human failing that most national constitutions contain term limits for the head of state purely as a safeguard against perpetuating dictatorial tendencies.
The 1978 Constitution originally prescribed a maximum of two six-year terms for the Executive President. The 18th Amendment was introduced by the very persons who once howled in horror about the evils of the executive presidency and pledged to abolish the odious office. Instead the 18th Amendment abolished the term limits, thereby enabling the President to contest for any number of times.
The Executive President enjoys total immunity from legal action during his term of office. If such a person was to hold the office for life anyone who is aggrieved by his acts would have no remedy before the law.
The 19th Amendment restored the term limits and also reduced the duration of the term to five years. It also introduced a disqualification for dual citizens to contest elections.
The 19th Amendment also removed the sole discretion of the Executive President to dissolve Parliament at his whim and fancy. The Parliament is elected by the people for five years and giving the right to the President to dissolve it arbitrarily is a challenge to the will of the people.
Discretionary powers should only be used with a sound rational foundation. The tendency for an all-powerful President to abuse his power is illustrated by the dissolution of Parliament in 2001 (a mere year after it was elected) for no valid reason. Even after the enactment of the 19th Amendment, the President in October 2018, in an act of supreme contempt for the Constitution, attempted to dissolve Parliament thus violating the Constitution he solemnly vowed to uphold at the beginning of his term of office.
However, the President still retains the right to prorogue Parliament. Prorogation is a temporary recess of Parliament particularly after a heavy session of work. Even this power has been abused by the Presidents in the past. In 2001, Parliament was prorogued to frustrate an attempt to impeach the Chief Justice and in 2018 it was prorogued to give time for the President to entice members of the governing party to defect to the opposition thus effecting a change of Government and also to prevent the introduction of a no-confidence motion against the newly appointed illegitimate Prime Minister.
Therefore, it would be appropriate for future constitutional reformers to consider whether prorogation should be done on a resolution of Parliament or on the advice of the Speaker.
The 19th Amendment also restored the Constitutional Council which was originally established by the 17th Amendment. Its role is to advice the President on making appointments to the independent commissions and important government positions. It originally consisted of a certain number of Parliamentarians and a majority of civil society members. The 18th Amendment restored the grip the President had in making these appointments. It created a “Parliamentary Council” which was no different to just another Parliamentary Committee consisting exclusively of Parliamentarians. The “Parliamentary Council” could only make its observations within one week and if such observations were adverse it would be of no consequence because the President could disregard them.
The 19th Amendment restored the Constitutional Council but with a majority of Parliamentarians. However the persons recommended for appointment by this council could be appointed even without the consent of the President. The President can also not appoint persons to the independent commissions unless approved by the council.
To abolish the Constitutional Council would be to re-invest the Executive President with absolute and unquestioned authority to fill all vital positions in the government including judges of the superior courts.
The 1978 Constitution had the right to free speech, expression and publication as a fundamental right. The 19th Amendment introduced the right to information as a constitutional right. Government information shrouded in secrecy leads to suspicion and thereby becomes a breeding ground for fake news and increased tension. Giving the citizen the right to Government information makes for a sunshine Government. Should this right be removed it would be a severe blow to the democratic rights of the citizen.
Under the 19th Amendment the President continues to be the head of the Cabinet but is legally obliged to consult the Prime Minister in determining the number of Cabinet and non-Cabinet Ministers and the assignment of subjects to them. Furthermore the President’s right to dismiss the Prime Minister or any Minister at his will was removed. Under the 19th Amendment, the President is also not entitled to hold any Ministerial portfolio. However, he continues to hold considerable executive powers, particularly the right to appoint secretaries to ministries, governors of the provinces and ambassadors.
A stable Parliament
While the legislature is entrusted with lawmaking, oversight of the executive and the control of public finance, the executive has the powers of administering the laws and running the Government. The function of the judiciary is to determine whether the laws are properly administered. Therefore, the separation of powers is a system of checks and balances to ensure that powers are not abused.
The proportional representation system in elections is also tied to the executive presidency. It tends to prevent the formation of steam-roller majorities and is a check on the uncontrolled abuse of power by a President. An Executive President who is supported by a massive majority in Parliament has a blank cheque to abuse power. It may be a dictator’s dream of a stable government but it has all the potential of being a nightmare for the citizens.
Parliament and other representative assemblies exist as a safeguard against executive abuse of power. Parliament is not a mere matter of proving numbers. It is a place where peoples’ hopes and fears are spotlighted for the attention of the Government. Therefore, a parliament that can be manipulated by the Executive President, supported by a massive majority is not a strong legislature.
In October 2018, we had the unpleasant experience of an Executive President breaching the Constitution. First, he used his discretionary power to prorogue Parliament for the blatantly illegal purpose of buying time to entice Government members to cross over to the opposition to alter the power balance. It was also to prevent a motion of no confidence being brought against the illegally appointed Prime Minister. His efforts were frustrated by the Speaker who firmly upheld the rights of Parliament.
His efforts being thus frustrated, he proceeded to directly violate the Constitution by dissolving Parliament. However, the Supreme Court which has the ultimate jurisdiction in constitutional matters struck down the dissolution as invalid.
Therefore, those who rush to condemn the Constitution and the 19th Amendment would do well to ponder whether something is wrong with the Constitution or whether something is clearly wrong with those who violate it.
No Constitution can be perfect. It has to be admitted that the second Republican Constitution with its 19th Amendment may have certain shortcomings. While these can be identified and corrected, it requires the constant vigilance of the citizen in safeguarding their civic rights. The Constitution itself cannot guarantee the success of democracy. It is spine chilling to recall how that masterpiece of statecraft, the Weimar Constitution of Germany, could not prevent the emergence of a brutal monster in the shape of Adolf Hitler who, in the guise of a saviour, led the country to destruction.
It is the duty of the citizens to give serious thought to the gravity of the choice before them and what the country stands to lose. The strengthening of the Executive Presidency is one side of the coin, the other being a slavish legislature and a helpless judiciary.
The stability of a nation is based on a sound economy where wealth and opportunities are equitably distributed, where people are cultured and where the law reigns supreme.
Therefore, in attempting to repeal the 19th Amendment it should be remembered that it was the fragile thread on which the civic rights of over 20 million people hung when the former President, hell-bent on destroying constitutional government in Sri Lanka, created an unnecessary crisis in October 2018.
(The writer is a retired Secretary General of Parliament and former ambassador to Austria.)