Photo courtesy of Anoma Wijewardene
The key objective of the 21st Amendment is to undo the undemocratic powers of the executive president and to expand the space for better governance. This would imply that no attempt will be made to place in the hands of the prime minister any powers that are undemocratic. The ultimate purpose of bringing about the amendment is to achieve systemic change that will prevent future mismanagement of the economy and the political system and also to establish social stability. If properly done, the 21stAmendment could pave the way for future change as a genuine attempt to establish democracy, the rule of law and the people’s participation, as well as to bring much needed dollars to Sri Lanka.
When it is said that the country is facing its worst manmade economic disaster, who is the man referred to? It is the executive president. Strategies to prevent the president from having unfettered powers and to prevent the executive from engaging in the mismanagement of economy and society should be included in the 21st Amendment.
There should be provisions to empower the participation of people, including those in parliament, so that the government is not be answerable to the president as it is now. Officers of the bureaucracies in branches of governance and all citizens should have a say about matters that they are interested in.
The constitutional technique by which this could be done is to change several limitations placed on people’s sovereignty in chapter 3 of the constitution. The limitation of the present articulation of the people’s sovereignty is that what is given with one hand is taken away by the other. While recognizing the principles of people’s sovereignty as a foundation of the state, limitations are placed through various provisions in that chapter itself for the exercise of people’s sovereignty.
A sub-paragraph should be added at a relevant place stating that the supremacy of law and the people’s sovereignty are inseparably linked and therefore any provision of the constitution that violates the principles of the supremacy of the law violates the sovereignty of the people. Any such provisions contained in the present constitution or in its amendment or any other legislation would be treated as without any effect law.
This has to be combined with the amendment within the same chapter regarding the nature and the power of the judiciary. Instead of stating that the judiciary derives its power from the supremacy of the parliament, it should clearly be stated that the judicial power is derived from people’s sovereignty. This will bring in the principle of separation of powers back into the constitution.
To this it should be added that the judiciary has the power of judicial review so that any law that violates the sovereignty of people exercised through the supremacy of law can be declared null and void by the judiciary. This is not new innovation. This power was recognized under the Soulbury Constitution; it was the 1972 and the 1978 constitutions that abolished that power, thus helping what is normally illegal to be legal by merely passing of a law or by gazettes or other notifications by the president.
If basic principles are brought in within the 21st Amendment, this will pave the way for diminishing the possibilities of interference in the democratic system and the legal system.
The legal system today remains severely condemned. The main criticism is that it has become subservient to many forces, including the executive, and also to illegal manipulation by parliament. Even high ranking police officers failed to stop nationwide violence on May 9 and on several days afterwards.
It has also brought the Attorney General’s Department into disrepute and prevented the administration of law in the most scandalous manner.
The power of the executive has been used to weaken the judiciary and the legal systems. Reducing the power of the president implies measures to re-strengthen the enforcement of law within the framework of law and democracy. Otherwise whatever measures are taken to reduce the power of the president can remain purely theoretical while failures of the law enforcement will ensure violation of law by the executive. This is what happened with the Easter Sunday bomb attacks, which could easily have been prevented if the law enforcement agencies did their basic duties.
When law enforcement fails, the country enters into the situation of paralysis and this paralysis spreads to institutions that control the regulatory system of finance. This is one of the major causes of the economic collapse that resulted in the country defaulting on its international debt payments for the first time in its history and it will continue to cause shortages of gas, petrol and power supply, high inflation and skyrocketing prices.
The 21st Amendment can contribute to recovery from this economic catastrophe. The Governor of the Central Bank has said that the restoration of law and order is an essential condition for expediting this recovery. Political stability is a pre-condition for overcoming the present economic crisis but this cannot be achieved without effective law enforcement. All politicians, not only the President, must be brought under the control of the law. If the 21st Amendment helps to do this, then one of the major demands of the protesting citizens that the 225 MPs should go will be addressed. People who break the law, even if they happen to be holding high positions, would be sent to jail.
A narrow minded idea of 21st Amendment to limit the changes only to disempower the executive presidential system and empower the prime minister will not suffice to deal with the challenges.
An opportune moment exists to make significant changes to the political and social cultural through the 21st Amendment. The prime minister is talking about bringing new political culture. Instead of superficial changes, what is needed is the law to be implemented in a way that those who break laws will be punished.
The cry is now is for citizens to have greater control over the political culture. The empowerment of the citizens is the only way through which people’s sovereignty can become real. It is hoped that the 21st Amendment will be a serious attempt in that direction.