The need for 19th Amendment for confidence in governanceAugust 15, 2011, 6:51 pm
Chinese Premier Wen Jiabao, right, meets with Sri Lankan President Mahinda Rajapaksa at the Zhongnanhai leaders compound in Beijing Thursday, Aug. 11, 2011. Rajapaksa is on a four-day visit to China. (AP)
By Jehan Perera
The non- Tamil and mainstream opposition appears to be taking a long term view of political change in the country. This may be why the UNP invited civil society groups to join with it in opposing the 18th Amendment when its first year anniversary comes on September 8 this year. The 18th Amendment to the Constitution has presented a roll back to the untrammeled power of the Executive Presidency, giving back to the incumbent the power to make unilateral appointments to all top positions in the government machinery, including the posts of Chief Justice, Election Commissioner, Bribery Commissioner and Inspector General of Police. It took away checks and balances necessary for good governance and restraint on the abuse of power. The government justified the constitutional change as being necessary for the political stability that will generate economic development.
In addition, the 18th Amendment further increased the power of the President even beyond that envisaged by the framers of 1978 Constitution. It abolished the two term limit on the Presidency and giving the President the right to contest elections without any limit on length of tenure. As a result President Mahinda Rajapaksa would be the most powerful leader that Sri Lanka has ever had. Modern technology would give him the ability to centralize rule in a manner the kings of the ancient past could never have. But along with this centralization have come major problems of governance that put democracy into jeopardy. At the present time, however, these problems do not seem a predominant concern for the majority of the national electorate, who continue to give the government thumping majorities at every election that is held.
At the same time the opposition is unable to take on the issues that have the government on the back foot internationally, and which it is handling in a manner that is creating more and more friction with a section of the international community. These are the issues of war crimes in the last phase of the war and the absence of any forward movement towards a political solution to the ethnic conflict in the immediate post-war period. This is because on both these issues, the government is able to mobilize the forces of ethnic majority nationalism against what it claims are the impositions of the international community. The mainstream and non Tamil opposition that requires ethnic majority support for political success does not dare take up the issues of either war crimes or a political solution for fear of being denounced as traitors.
With its phenomenal ability to win elections, there should have been consensus in the country that the government is successful at governance. However, Sri Lanka today presents a picture of extremes. There is also an appearance of optimism and dynamism that coexists with the deep rooted problems of governance which are less obvious. At the present time the country is hosting a delegation from African Commonwealth countries. They have come to assess a first-hand Sri Lanka’s bid to host the Commonwealth Games in 2017. The government has presented the remote and lightly populated southern district of Hambantota, the birthplace of the President as the suitable venue for the games. Visiting foreign delegations are reportedly impressed by the models of the Commonwealth Games village that has been prepared by the Sri Lankan government, which is sparing no effort to win the bid.
The delegates from abroad will have little doubt that the government will be able to deliver on its promises. This is a government that created world history by totally defeating a rebel army known as the world’s worst most deadly terrorist organization within four years of its election. But there is another side to this picture. The billions of rupees that the government is prepared to invest in Hambantota means there will be less for the rest of the country. The government is investing very heavily in the Hambantota district which is the home base of the President. But there are 24 other districts in the country. Most of them are relatively poor and some even poorer, such as those in the north and east of the country where the three decade long internal war was fought.
Good governance is about the equitable distribution of resources so that all people in all districts benefit from government resources. It is also about power sharing in which decisions by the central authorities are made in consultation with the local authorities. Good governance is also about the rule of law where even government leaders are subject to the rule of law and no one is above the law. The obvious problem with governance in Sri Lanka is the manner in which power is centralized in the Presidency and the constitutional provisions that put any incumbent President beyond the law. If the President chooses to suppress reports of Presidential Commissions of Inquiry or reports provided to him by the heads of security agencies, there is nothing that can be done. But this erodes the confidence of the general public in the institutions of state.
A fortnight ago there was an assault on a senior journalist in Jaffna. The assault took place near a military sentry point in a town that is saturated with the military. There is a doubt as to how anyone who did the assault could have got away without being apprehended. The latest report is that the police have arrested a suspect. Following local and international protests the government ordered an investigation into this assault. However, it is reported that the police report lies with the President. It is like the report of the Presidential Commission to report into serious human rights violations in 2007 which suffered a similar fate. It is no cause for surprise, and every cause for sadness, that a senior academic Prof. Ratnajeevan Hoole with a social mission has felt impelled to flee Jaffna rather than place his faith in the law enforcement and justice mechanisms available in that part of the country. A glance at the media headlines would indicate signs of deep discontent in society that are not reflected in the election results. A few weeks ago there was the scandal about the import of substandard petrol that ruined thousands of cars. Now where is another report of the import of substandard cement that could cause buildings to collapse in the future. There are also stories of people taking the law into their own hands on the grounds that the police will not act or will protect the wrongdoers. The opposition presidential candidate for whom over 40 percent of the national electorate voted continues to languish in prison on controversial charges that were ratified by military courts.
The problem with the suppression of the truth of what happened is that it erodes confidence in the institutions of governance. This is what leads people to take the law into their own hands. The latest crisis is the breakdown of respect for the law in with regard to the rumour of "grease devils" who attack women and children. According to witnesses and police there are men who wear balaclavas that cover their heads and leave only the eyes exposed and who grease their bodies and move about at night to commit criminal acts. Some alleged suspects have been caught and killed by vigilante groups. They may be innocent persons. Some were said to be traveling salespersons. A justification given by the vigilantes is that the police do not take action when these suspects are apprehended because they are connected to the government machinery. It is clear that there is a breakdown of confidence in the integrity of national institutions.
The progressive debilitation of the system of checks and balances in Sri Lanka’s democracy preceded President Rajapaksa. The promulgation of the so-called autochthonous or "home grown" constitution of 1972 was a turning point. That constitution put the executive branch of government firmly in the saddle and made the positions of the judiciary and public service subordinate to it. The unanimous passage in Parliament in 2000 of the 17th Amendment to the constitution was a belated recognition of the need to ensure checks and balances to the power of the Executive, which had got increasingly concentrated in the hands of the President. The opportunity for enforcing good governance was finally dealt a death blow by the 18th Amendment, which is why a 19th Amendment is necessary for good governance to be restored.
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