Whither rule of law under 20A?
Rule of law simply means, “Law should govern (rather) than any one of the citizens”
-- Aristotle The governing law of a country is its Constitution. Two rudiments of Parliamentary democracy are: the Independence of the Judiciary and the independence of the Auditing Services Commission and the Procurement Commission.
But, both independent commissions are to be abolished under the 20th Amendment to the
Constitution, along with many other provisions that stood for checks and balances.
Much has been written and is being written about the dictatorial powers to be vested with the Executive
President. I would confine myself to the burning national question of power-sharing and its attendant ramifications.
Mahinda Rajapaksa came to power as Executive President in 2005 on a mandate to abolish the Executive Presidency. His ‘ Mahinda Chinthanaya’ policy for national development also called for strengthening a Bill of Rights in a new Constitution. A national human rights action plan was drafted and adopted. The president also appointed an expert committee to assist the All-Party Conference (APRC) on constitutional reform and asked them to work towards maximum devolution to resolve the “national question” with power sharing.
Yet in 2010, after ending the war, he brought in the 18th Amendment acquiring full powers on appointment and removal of holders of high office and Public Commissions without the scrutiny of a
Constitutional
Council and procedures introduced by the 17th
Amendment and forgot the national question of power sharing.
The 19th
Amendment defined the powers and also introduced a principle of
“duties” that had to be fulfilled by the
President.
One of these was to “promote national integration and reconciliation.” The 20th Amendment retains provisions on presidential powers but repeals the 19th Amendment provisions on Presidential duties. And with it goes the emphasis on national integration and reconciliation.
True, the war was ended crushing the LTTE. But the question of power-sharing is still simmering. Drunk with unfettered power, the incumbent President could lead the country to a state of anarchy again if he does not pay heed to the national question.
Accepting the grievances of the Tamil people in regard to power sharing as just and fair, ‘pacts’ were entered into by leaders of successive Sinhala-majority government leaders and Tamil political leaders. But all these pacts were abrogated as SinhalaBuddhist extremists rose in protest.
The 1972 Constitution of the Republic of Sri Lanka, adopted Sinhala as the official language and also gave Buddhism the foremost place making it the duty of the State to protect and foster Buddhism while assuring all other religions the rights granted under ‘Fundamental Rights’.
These features in the 1972 Constitution aggravated the concerns of the Tamil people who saw them as being discriminatory. The Tamil community -- the Federal Party, the Tamil Congress, and other Tamil organisations -- reacted collectively and in May 1972 formed the Tamil United Front which later became the Tamil United Liberation Front (TULF).
Seeing no light at the end of the tunnel for a negotiated settlement, and frustrated by these repeated abrogation, the TULF unanimously adopted the Vaddukoddai Resolution on May 14, 1976. The Resolution articulated, inter alia, the view that “the minority Sri Lankan Tamils needed separation from the rest of Sri Lanka to resolve their political problems, to restore and reconstitute the State of Eelam”; and “This convention calls upon the Tamil Nation in general and the Tamil Youth in particular to come forward and throw themselves fully into the sacred fight for freedom and to flinch not till the goal of a sovereign State of Eeam is reached.”
With that, the hitherto moderate leadership that was campaigning for the Tamil cause lost control and militant youth who took over the leadership resorted to terrorism as a means to obtain their goal, and the country experienced thirty years of war.
The incumbent President is well advised to be magnanimous enough to settle the national question of power-sharing and prevent fanning of the simmering fire.
The 20th Amendment retains provisions on presidential powers but repeals the 19th Amendment provisions on Presidential duties. And with it goes the emphasis on national integration and reconciliation