18th Amendment: Making a Mockery of Democracy in Sri Lanka

Sri Lanka’s Parliament passed the controversial 18th Amendment Bill on September 8, 2010, with 161 Members of Parliament voting for and 17 against the bill. It is basically an amendment of the 17th Amendment, which the current government considered as “ineffective and impractical.”1 The highlights of the changes brought about by this amendment are:

1. The President can seek re-election any number of times;
2. The ten-member Constitutional Council has been replaced with a five-member Parliamentary Council;
3. Independent commissions are brought under the authority of the President; and,
4. It enables the President to attend Parliament once in three months and entitles him to all the privileges, immunities and powers of a Member of Parliament other than the entitlement to vote. In short, it is all about arming the President with absolute power.

It was hoped that after winning the secessionist war with the Tamil militants, which troubled the island nation for 26 years, the government would accord top priority to finding a political solution to the ethnic issue. But the government had other things in mind. The Cabinet of Ministers chose to certify the proposed 18th Amendment Bill as urgent and approved it on August 30, 2010. The Supreme Court, to which the bill was referred as per the constitutional requirement, came out with its views on September 7, that the amendment was consistent with the provisions of the Constitution and did not require a referendum. The bill was then debated and enacted by Parliament the following day (September 8). The bill was thus put on fast track and enacted within 10 days without offering the Sri Lankan public any chance to air their views.

Provinces were totally sidelined during the process. According to the Standing Order 46 (A) the Provincial Councils should have been consulted on any Bill that provided for matters affecting their affairs.2 Provincial Police and Public Service Commission, which has been made defunct under the 18th amendment, did affect the provinces and thus, ideally, the bill should have received the approval from the Provincial Councils.

The government argued that the amendment was essential to strengthen and enlarge the democratic and sovereign rights of the people. In reality, however, the amendment has concentrated all powers in one individual – the president. It has removed the restrictions on two terms for an elected President, who now also has the power to call for a Presidential election after four years of his second term. Earlier, under Article 17A, the President was obliged to obtain the recommendation of the Constitutional Council for appointments to the independent commissions. According to Minister of Finance Basil Rajapaksa, such a council was “riddled with flaws, which led to a gridlock”3 and affected the appointment of members to the independent commissions. Therefore, the 18th Amendment was needed to replace the Constitutional Council with a Parliamentary Council, which now consists of the Prime Minister, the Speaker, Leader of the Opposition Party and two Members of Parliament to be nominated by the Prime Minister and Leader of the Opposition. In case they fail to name their respective nominees within the stipulated time of one week after the amendment became effective, the Speaker has the power to appoint the two members to the Parliamentary Council.

Under the present Amendment, the President has the power to appoint the Chairman and members of the Election Commission, Public Service Commission, National Police Commission, Human Rights Commission, Permanent Commission to Investigate Allegations of Bribery and Corruption, Finance Commission, Delimitation Commission, Chief Justice and Judges of the Supreme Court, the President and Judges of the Court of Appeal, Members of the Judicial Service Commission, Attorney General, Auditor General, Ombudsman and Secretary General of Parliament.

The President shall seek the observation of the Parliament Council while making the appointments, who in turn have to convey their observations within a week of such communication. Failing that, the President can go ahead with the appointments. He/she is not bound by the observations of the council. He/she also has the power to remove members of the Independent Commissions. Moreover, he/she can remove the two nominated members appointed by the Prime Minister and the leader of the Opposition from the Council. Already, Mahinda Rajapaksa’s relatives are holding all the important positions in Sri Lanka.4 Analysts in Sri Lanka believe that this appointment may ensure that more relatives will be given plum appointments in the independent commissions and the judiciary.

It is interesting to note that during the election campaign Rajapaksa talked about the abolition of the Executive Presidency, but soon after his win he has made the post stronger than ever. Actually, he has realised that the time is opportune for him to acquire greater powers through necessary revisions in the constitution. His popularity, following the success in the Eelam War IV, is at its zenith. His party dominates the parliament. The major opposition party, the UNP, is going through an internal crisis. With all his relatives in major positions, he can easily sideline the opposition. It seems he is in a desperate hurry to grab this opportunity to install himself as the permanent ruler of Sri Lanka. That is why the bill was projected as a bill of “national urgency” though he has had more urgent national issues to solve.

Beyond doubt, the amendment has made the president all powerful without any sound mechanism of checks and balances, which is absolutely necessary for a responsive democracy. The 17th Amendment had, to some extent, provided for limited checks and balances, but it was never implemented. The 18th amendment has removed them completely. It gives the President full control over the executive, legislature and judiciary. It is the first amendment to the current constitution under Rajapaksa since November 2005. The easy passage of the bill must have given him the confidence to initiate other such amendments. He is now reportedly planning to amend the Local Government Elections Ordinance, Municipal Councils Ordinance, Urban Council Ordinance and the Pradeshiya Sabha Act.

In short, Sri Lanka seems to be headed towards nepotism and dictatorship which will certainly have disastrous consequences. And such a change seems inexorable. So far, except for the US, no external power has reacted to the amendment. The Rajapaksa government has rebuffed US remarks and declared that this is an internal Sri Lankan affair. If Sri Lanka under Rajapaksa could carry on its war against the LTTE in spite of international concerns about human rights violations, it is unlikely that it would pay any heed to such reactions from the outside after its victory.

The Sri Lankan opposition, led by the United National Party (UNP), which could have done something, has allowed itself to be turned into a helpless spectator. It did oppose the bill and conduct protest demonstration outside the parliament. But it failed to engage in detailed discussions about the bill and boycotted the debate on the bill in the parliament. This irresponsible act drew sharp criticism in some sections in Sri Lanka who have charged the UNP of indirectly supporting the Government.5 However, given the triumphant mood of the Rajapaksas, any opposition is unlikely to have had any impact.

For example, the Tamil National Alliance (TNA), Democratic National Alliance (DNA) and Janatha Vimukthi Peramuna (JVP) participated in the debate and vehemently criticised the bill. It was a fact that they did not have enough numbers with them. Moreover, six UNP dissidents and eight SLMC members voted with the government. Had these 14 MPs cooperated with the UNP, TNA, DNA and JVP, the 18th amendment could have been defeated in the parliament. The Civil Rights Movement, the Organisation of Professional associations and the Bar Association of Sri Lanka opposed the bill. TNA MP M.A. Sumanitharan commented that the 18th Amendment is the final nail in the coffin of democracy in Sri Lanka.6

In this context, a Sri Lankan observer rightly avers that there are two potential pathways ahead for post-war Sri Lanka. One is the path of “pacifism, resolute adherence to democracy-cum-rule of law, and industriousness of the kind pursued by Germany and Japan which made them economic powerhouses in the world within a short span;” and the other is the path of post-Khmer Rouge Cambodia which is “dogged by democratic deficit, corruption, nepotism and low-intensity authoritarianism, and thereby continues to be one of the poorest countries in the world.”7 Mahinda Rajapaksa seems to be following Cambodia’s example.

• 1. By the 18th Amendment Act, Articles 31, 32, 54, 55, 71F, 65, 91, 103, 104B, 107, 109, 111D, 111E, 153, 154, 154R, 155A, 155G, 155K, 156 of the Constitution were amended and Chapter VIIA (Art. 41A to 41H), 155H, 155J, 155L, 155M were repealed. Three new articles 41A, 155FF and 155FFF were inserted. For more details see the Full Text of (Proposed) “An Act to Amend the Constitution of the Democratic Socialist Republic of Sri Lanka,” L.D.O 19/2010 at http://www.thesundayleader.lk/wp-content/uploads/2010/09/Proposed-18th-A….
• 2. Daily Mirror, September 8, 2010, at http://www.dailymirror.lk/print/index.php/news/front-page-news/20891-pcs….
• 3. Daily Mirror, September 9, 2010, at http://www.dailymirror.lk/print/index.php/news/front-page-news/20995-161….
• 4. See the “Family Tree” of Mahinda Rajapaksa in Post War Sri Lanka: Democratic Rights Under Pressure, Report Prepared by Sanchal Foundation in Collaboration with South Asia Forum for Human Rights, September 2010.
• 5. “United National Party (UNP) dissidents Lakshman Seneviratne and Earl Gunasekara said the absence of the United National Party (UNP) amounted to indirectly supporting the government to enact this legislation,” Daily Mirror, September 9, 2010, at http://www.dailymirror.lk/print/index.php/news/front-page-news/20995-161….
• 6. See M.A. Sumanitharan’s Speech during Parliamentary Debate on 18th Amendment Bill on September 8, 2010, Hansard: 193, at http://www.groundviews.org/2010/09/20/hansard-on-18th-amendment-debate-8….
• 7. Muttukrishna Sarvananthan (2010), “Economic Freedom: The Path to Economic Cum Political Emancipation of the Conflict Region in Sri Lanka” in Raghavan, V R (ed.), From Winning the War to Winning Peace: Post War Rebuilding of the Society in Sri Lanka, Chennai: Centre for Security Analysis: 26-27.