Focus on Rights

The democratically toxic nature of the Executive Presidency as enthroned in the 1978 Constitution is no strange topic to Sri Lankans. It is quite ironic however that despite continuing discussions from 1994 as to the manner in which this constitutional aberration maybe be abolished or at least, reformed so as to rid it of its more obnoxious autocratic features, we are now seeing the absolute opposite.

The gathering of even greater powers within the mantle of the Presidency, as manifested by a range of happenings from the deliberate non-implementation of the 17th Amendment to a the recent proposal of a bill seeking to establish a Reconstruction and Development Authority (RADA), is quite clear. Whether the Rajapaksa Presidency is itself propelling such forces or whether this is the compulsion of other more sinister strategists (political or extra political) are good questions. However, a further destabilisation of Sri Lanka's democratic processes seems inevitable.

The explicit degeneration of the 17th Amendment and the reducing of the Constitutional Council to a political farce have been discussed in detail in recent months both domestically and internationally. The recent proposal to establish a Parliamentary Select Committee to look into the workings of the 17th Amendment is yet another manifestation of this farce.

On the other hand, the RADA bill, seeking to establish an Authority designated by law with a plethora of powers relating to reconstruction and development, has attracted less attention. Its clauses are extremely worrying, none the more so in that, by clause 30(2), it transfers the power of acquisition of lands "urgently required for the purpose of carrying out reconstruction, development and rehabilitation work" from the Minister of Lands to the President. This has particularly troublesome impact since, unlike in the case of acquisitions by the Minister of Lands which can be challenged in court, Presidential immunity can effectively bar such challenges if the bill is enacted into law.

As we have seen, the application of such "blanket immunity" was judicially held by the Court of Appeal some weeks back to preclude challenge of the direct Presidential appointments to the "independent" commissions set up under the 17th Amendment. In that instance, we had the undoubtedly ironic spectacle of a Presidency being afforded the refuge of provisions conferring immunity that emanate from the very Constitution that is being bypassed by that same Presidency.

Some years back, when the Constitutional Council (CC) set up under the 17th Amendment, attempted to obtain immunity for its actions in recommending and approving appointments to important public posts and commissions under the 17th Amendment, a storm of protests were raised on the basis that the CC cannot be considered above the law. Indeed, this was a point of view acceded to by the Supreme Court thereafter when the bill seeking to amend the 17th Amendment to that effect was challenged. It is a matter of supreme paradox therefore that we now have the Presidency usurping the powers of the CC and then successfully claiming immunity to shield himself from legal challenge.

And after some ten years of confused constitution making, we are back full circle to the pruning down of the awesome powers vested in the Presidency and amending of the immunity afforded to the office. This acknowledgement was very palpable in 1994 when the Kumaratunga administration came into power. In the years preceding this, despite the barbarities committed by government forces both in regard to Sinhalese and Tamils, one could still own to a measure of optimism regarding the future of this country.

However, the differences now, as compared to then, are glaring. We do not have a strongly activist civil society nor a vibrant media nor indeed, most importantly, an energetically pro-active judiciary. Then, despite the killings and the widespread climate of fear that prevailed, we could shoulder the burdens cast upon us with a commendable degree of strength. Now, we do not have that strength. Rather, we demonstrate such a cacophony of malfunctional opposites in our daily functioning, (whether it is the administration of our local government authorities or the maintenance of ordinary law and order), that one is hard pressed to isolate a single instance that is different from the dissonant whole.

Undoubtedly, there is something desperately wrong in our society and in our basic rule of law structures. And the insidious co-opting of civil society as well as vast segments of the media, into the political structures of the two major political parties in this country and the equally insidious linking of the executive with the judiciary, overtly as well as covertly in recent years, are all faces of this same dilemma.

Thus, the infliction of that perennial panacea for our woes, the All Party Conference, (to which incidentally, the main opposition United National Party and the Tamil National Alliance has proclaimed that they would not attend), is more than extraordinarily difficult to bear. Even while innocents are massacred at Kebethigollewa by terrorists seeking the right to self-determination through terror in the North-East, we have a crisis of governance so severe in the South that it continues to shake the very foundations of our democratic existence.

So far, we have been singularly inept in our handling of rule of law imperatives. Our blindingly blinkered approach must be met by a genuine effort towards constitutional reform, focussing immediately on the reform or abolition of the Executive Presidency. Such commitment is imperative to take this country back from the precipice. It is useful to recall at this point that when a resolution for the creation of an executive presidency was to be introduced by Mr Dudley Senanayake's colleagues, Messers JR Jayawardene and R. Premadasa during the deliberations of the Constituent Assembly drafting the First Republican Constitution of 1972.

Mr Senanayake, as history would prophetically have it, opposed the resolution.

He opposed it on the basis that the Presidential system has worked in the United States where it was the result of a special historic situation. It has worked in France for similar reasons. But, as Mr Senanayake opined, "For Ceylon, this would be disastrous. It would create a tradition of Ceasarism. It would concentrate power in a leader and undermine Parliament and the structures of political parties. In America and France, it has worked but generally it is a system for a Nkrumah or a Nasser, not for a free democracy."

Many decades later, we recall these words with predictable nostalgia. Sri Lanka, as has been amply proved, has found herself to be incapable of properly working the democratic processes far less successfully coping with an Executive Presidency as easily susceptible to abuse of power as it is. Such indeed, is the unpalatable reality.