The Eighteenth Amendment to the Constitution: Substance and Process Edited by Rohan Edrisinha and Aruni Jayakody This publication has been produced in partnership with the Friedrich-Naumann-Stiftung für die Freiheit. The Foundation’s work focuses on the core values of freedom and responsibility. Through its projects FNF contribute to a world in which all people can live in freedom, human dignity and peace. The contents of this publication are the responsibility of the Centre for Policy Alternatives. The Centre for Policy Alternatives (CPA) is an independent, non- partisan organisation that focuses primarily on issues of governance and conflict resolution. Formed in 1996 in the firm belief that the vital contribution of civil society to the public policy debate is in need of strengthening, CPA is committed to programmes of research and advocacy through which public policy is critiqued, alternatives identified and disseminated. Address:! 24/2 28th Lane, off Flower Road Colombo 7 Telephone: ! +94 (11) 2565304/5/6 Fax: ! ! +94 (11) 4714460 Web! ! www.cpalanka.org Email! ! [email protected] Page | 2 Centre for Policy Alternatives Table of contents Abbreviations ! About the Contributors " Introduction # Chapter I - The 18th Amendment: Political Culture $% and Consequences, Dr. Paikiasothy Saravanamuttu Chapter II - The 18th Amendment and the &% Consolidation of Executive Power, Aruni Jayakody Chapter III - Constitutionalism the 18th Amendment '$ and the Abdication of Responsibility, Rohan Edrisinha & Aruni Jayakody Chapter IV - A Critique of the 18th Amendment Bill "" Special Determination, Niran Anketell Chapter V - The Eighteenth Amendment and the #$ Abolition of the Presidential Term Limit, Asanga Welikala Bibliography $(( Appendix I: Summary of Changes under the 18th $!) Amendment Appendix II: Supreme Court Determination on the $"* 17th Amendment Appendix III: Supreme Court Determination on the 166 18th Amendment Page | 3 Centre for Policy Alternatives Appendix IV: The 17th Amendment to the Constitution Appendix V: The 18th Amendment to the Constitution Page | 4 Centre for Policy Alternatives Abbreviations! APRC All Party Representative Committee CP Communist Party of Sri Lanka CWC Ceylon Workers’ Congress EPDP Eelam People's Democratic Party IGP Inspector General of Police JHU Jathika Hela Urumaya JVP Janatha Vimukthi Peramuna LSSP Lanka Sama Samaja Party LTTE Liberation Tigers of Tamil Eelam NFF National Freedom Front NPC National Police Commission PSC Public Service Commission TNA Tamil National Alliance UMNO United Malays National Organisation UNP United National Party UPFA United People’s Freedom Alliance Page | 5 Centre for Policy Alternatives Page | 6 Centre for Policy Alternatives About the Contributors Niran Anketell (LLB (Hons.) (University of Colombo), LLM (New York University)) is a lawyer specialising in human rights and constitutional law. Niran was a Fulbright Scholar and a Hauser Global Scholar during his time at New York University. He has taught public international law at the University of Colombo and researched issues relating to freedom of expression and national security. Rohan Edrisinha!(LLB (Hons.) (University of Colombo), LLM (University of California, Berkeley)) is the Head of the Legal and Constitutional Unit, and Director of the Centre for Policy Alternatives.!!He is on leave from the!Faculty of Law at the University of Colombo where he taught constitutional law. He is currently the international project manager for the United Nations Development Programme Project to!support!participatory constitution building in Nepal.! Aruni Jayakody (BA (Hons.) LLB (Hons.) (University of Queensland)) is a lawyer and a researcher at the Legal and Constitutional Unit of the Centre for Policy Alternatives. She has researched issues relating to freedom of expression and the Internet in Sri Lanka. Paikiasothy Saravanamuttu (BSc (Econ) PhD (London School of Economics)) is the Executive Director of the Centre for Policy Alternatives. He is also a Co-Convenor of the Centre for Monitoring Election Violence. He was the recipient of the first Citizens Peace Award in 2011 and has published widely on issues relating to Sri Lankan politics. Page | 7 Centre for Policy Alternatives Asanga Welikala (LLB) (LLM) (University of Hull) is a senior researcher at the Legal & Constitutional Unit of the Centre for Policy Alternatives (CPA). He is currently on leave from CPA and is a doctoral student at the School of Law, University of Edinburgh. He is a member of the Edinburgh Centre for Constitutional Law. He has published widely on issues relating to Sri Lankan constitutional law. Page | 8 Centre for Policy Alternatives Introduction The 18th Amendment to the Constitution marks an important event in Sri Lanka’s constitutional evolution. It achieves what one might have thought was previously unthinkable, it makes Sri Lanka’s over-mighty executive even more powerful. The 18th Amendment removed the two term limit on holding the office of the President and removed important checks on the exercise of executive power. Yet, such important changes that have a devastating effect on the democratic process were hatched in secrecy and enacted in to law, with no public consultation and little debate. Key actors that ought to have played a greater role in a process of constitutional amendment, such as the Supreme Court, took little notice of both the substance and process of the amendment. This volume of essays examines the process, substance and political implications of the 18th Amendment. Chapter I by Dr Paikiasothy Saravanamuttu analyses the implications for Sri Lankan politics and political culture under the 18th Amendment. Defenders of the 18th Amendment argued that since economic development is the overarching priority, a stronger executive as facilitated by the 18th Amendment is required to ensure the political stability that is necessary for economic development. Yet, if one were to look at Sri Lanka’s past, a strong executive under President J R Jayawardene did not translate in to strong economic development. Rather, a stronger executive in part contributed to tendencies towards authoritarianism and insurgencies in both the north and south, which drained the country of many opportunities and resources. The 18th Amendment also represents both a consolidation of power in the hands of the Page | 9 Centre for Policy Alternatives Rajapaksa family and a transformation of Sri Lanka’s political culture from a vibrant and unruly South Asian democracy to a more homogenous and disciplined East Asian system. Chapter II by Aruni Jayakody examines the substance of the 18th Amendment. In terms of substance it is important to understand the 18th Amendment as a mechanism that achieved more than just the removal of the two term limit. In addition to removing the two term limit, it also repealed important checks on executive power introduced by the 17th Amendment. The President now has unfettered power to make all key public service appointments. For example, the President has been given significantly greater control over the entire legal system, as it is solely at his discretion that the Attorney General, Judges of the Supreme Court and Judges of the Court of Appeal are appointed. Further the 18th Amendment also reduces the powers of key bodies such as the Public Service Commission, Election Commission and National Police Commission. In particular, the Election Commission no longer has the power to prevent the abuse of state resources including state media. More worryingly the Election Commission has been given power to issue guidelines to not only the state media but also the private media during election times. Thus, not only is the President allowed to run for an innumerable number of terms but the mechanisms that regulate the integrity and independence of elections have also been removed. Chapter III by Rohan Edrisinha & Aruni Jayakody examines the process used to enact the 18th Amendment. The Amendment was tabled before Cabinet, reviewed for constitutionality before the Supreme Court, debated in Parliament and enacted in to law within a mere ten days. Such a process violates the first principles of constitutionalism Page | 10 Centre for Policy Alternatives