By Rohini Hensman
Sri Lanka’s claim to be a democracy has been tenuous for years, but the Eighteenth Amendment to the Constitution dealt it a fatal blow. It changed Sri Lanka into a de facto dictatorship like Zimbabwe and Myanmar, where it is abundantly clear that elections alone cannot unseat Mugabe or Than Shwe.
The Eighteenth Amendment was rushed through as an urgent bill that sought to bring about two changes to the constitution: nullify the Seventeenth Amendment by replacing the Constitutional Council with a toothless Parliamentary Council, and abolish the two-term limit on the presidency. Its passage allows the president to appoint people to all the positions and posts mentioned in the 17th amendment constitutionally: the Election Commission, Public Services Commission, National Police Commission, Human Rights Commission, Finance Commission, Delimitation Commission, and Permanent Commission to Investigate Allegations of Bribery or Corruption, the Chief Justice and judges of the Supreme Court, President and judges of the Court of Appeal, members of the Judicial Services Commission other than the chairman, Attorney-General, Auditor-General, Inspector-General of Police, Ombudsman and Secretary-General of Parliament. In effect, it ensures that he can remain president for life (with lifelong immunity) by manipulating elections and making nonsense of the independence of the judiciary.
Why was it so urgent? Owing to a convoluted constitutional amendment introduced by Jayawardene, President Rajapaksa would not even begin his second term until November 2010, so what was the urgency to decide that he could stand for a third term? There seem to have been three compulsions. One, his waning popularity would mean that the longer he waited, the more difficult it would become to pass such an amendment. Two, rushing the amendment through parliament without a public debate would forestall objections. The third probable reason is that Jayawardene is reported to have contemplated such an amendment towards the end of his second term, but by then, Premadasa was waiting in the wings to replace him, and would not agree to it. So this could well be a move on the president’s part to pre-empt bids by other members of his party – or even his family – to replace him. In the process, of course, his 2005 election pledge to abolish the executive presidency was thrown to the winds.
Who Is To Blame?
There is no doubt that the primary responsibility for this travesty of democracy lies with President Rajapaksa and the UPFA. But they lacked a two-thirds majority, and could not have pushed through the amendment without many accomplices. Opposition leader Ranil Wickremesinghe participated in the horrors perpetrated by the Jayawardene and Premadasa regimes as a member of their governments, including the anti-Tamil pogroms of 1983 and the torture and extrajudicial killings of Sinhalese in the late 1980s. As leader of the opposition, he sabotaged the constitutional proposal of 2000 (which would have made the 18th Amendment impossible if it had gone through), and played a negative role in the APRC process. He has been criticised for being absent at the debate on the 18th Amendment instead of arguing and voting against it, but what could he possibly have said that would not have sounded hypocritical? The UNP’s failure to stand for anything but a desire for power has meant a steady haemorrhage of defectors to the ruling alliance where the real power lies, and they helped to push the amendment through.
Then there was the LTTE. Prabhakaran’s stubborn refusal to consider anything other than an exclusively Tamil totalitarian state in the areas it controlled detached the issue of justice for Tamils from the goal of democracy for all, where it rightfully belonged. This blocked attempts to push through a democratic solution to the civil war and abolish the executive presidency in the decade from 1994 onwards, when Sinhala nationalism was in abeyance. The return to war and terrorist attacks helped to stoke Sinhala nationalist sentiments and legitimise the ruthless drive to exterminate the LTTE, as well as the anti-democratic measures taken before and after the end of the war.
Other accomplices included the Supreme Court judges who allowed the amendment to be rushed through, politicians from minority parties who voted for it, and politicians from the Socialist Alliance who also voted for it, despite the fact that the Politburo and Central Committee of the LSSP and DLF had decided to abstain. One is reminded of Stanley Kramer’s 1961 film ‘Judgment at Nuremberg’, which tells the story of the trial of four German judges guilty of complicity with the Nazis. One of them, Ernst Janning, was once a champion of justice,yet played a major role in turning the German legal system into an instrument of Nazism. How could these apparently decent men have been complicit in the atrocities committed by the Nazis? The mystery is solved when Janning makes a statement, showing how actions which at first seemed trivial and innocuous led to deeper and deeper entanglement with the regime. Later on, they justified staying at their posts by saying that they were trying to prevent matters from getting even worse. Of course that was a delusion. What really could have prevented matters from getting worse would have been clear opposition to the fascist transformation of the state and society, but that was the course they did not take.
Are the majority of Sinhalese people complicit in turning Sri Lanka into a dictatorship? Two days before the amendment was passed, Jehan Perera asked community leaders in various parts of the country what they thought of it, and they replied that they did not know enough about it to have an opinion. He also got the impression that they were afraid of voicing opposition. This account rings true. If judges of the Supreme Court and parliamentarians did not get the text of the amendment until the last minute, how could ordinary people in the provinces know what it contained? And if they had seen war hero Sarath Fonseka incarcerated and threatened with death for opposing the regime, wouldn’t they fear that the same or worse could happen to them? In both 1999 and 2005, the Sinhalese majority voted massively for presidential candidates who promised to abolish the executive presidency. In 2010, a large part of the 4.17 million votes for Fonseka were cast in the fear that if Rajapaksa came to power, he would become a dictator: a fear that some think was justified. Millions more did not vote for either of the main contenders fearing that Fonseka could turn out to be as bad as Rajapaksa, resulting in an abnormally low voter turnout. If protest votes and abstentions are added up, they come to a substantial majority who were opposed to dictatorship.
Sri Lanka may now be at risk of sliding towards dictatorship, but it does not follow that the aspiration for democracy among its people is dead. There were protests against the 18th Amendment and the manner in which it was passed from the Civil Rights Movement, Organisation of Professional Associations, Bar Association and law students, Centre for Policy Alternatives, National Peace Council, eminent academics and intellectuals, religious leaders, trade unionists, media persons, and many other concerned citizens. In parliament, it was opposed by the DNA and TNA, despite the vulnerable position of both. Thanks to TNA MP Sumanthiran’s well-argued and eloquent speech in parliament, objections to the 18th Amendment were voiced in the debate and went on record. The leader of the NLF, Vickramabahu Karunaratne, called on people to wear black in protest against the amendment. Nineteen LSSP and DLF Poliburo and Central Committee members condemned the decision of the executive committee of the Socialist Alliance to vote in favour of the18th Amendment ignoring their decision not to participate in the voting, and called upon all progressive forces to fight against the establishment of an authoritarian state.
Whether these protests die down or grow, making use of the remaining democratic space before it is shut down, depends on many things. It is an irony that the only parties defending democracy in parliament were the JVP and TNA, which have both espoused decidedly undemocratic politics in the past. In the circumstances, all freedom-loving Sri Lankans have reason to be grateful to them. But unless the JVP and Sarath Fonseka abandon their Sinhala nationalism, they will not be able to carry forward the struggle for democracy. On the other side, the TNA has distanced itself from the goal of Tamil Eelam, but unless it also abandons its residual Tamil nationalism, its capacity to fight for democracy will be limited.
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