Category Archives: Constitutional Reforms

Sri Lanka is missing the 17th Amendment

An year ago, we had the funeral of the independence of the judiciary with the repeal of the 17th amendment to the Constitution and with the introduction of the 18th amendment. Present Chief Justice led bench gave that milestone judgement that was heavily criticized even in the Commonwealth law journal, when she was in the good books of the ruling coalition. Unfortunately or fortunately she is facing an impeachment led by the same coalition today. Judiciary was part of that killing of the 17th amendment and here we see its repercussions today.

 

This is the second best case study in the most recent history in Sri Lanka where the citizens have evidenced how Chief Justice has been shifting the interpretations of law based on the change of favorite position of the executive. Yet, the one who came to bench during these two, who was appointed due to seniority with no political favourations managed to preserve the independence of the judiciary.

 

Supporting or not-supporting the current impeachment for me will not make any change to ensure the independence of the judiciary in this country. The present government will pass this impeachment as they say ‘constitutionally’ with a 2/3 majority in Parliament. However, another political friend will fill in that position: within or outside the hierarchy. Irrespective of the seniority. This cycle will continue while the international community and the opposition will continue raising their concern at every appointment, at every favourable judgement and at every impeachment.

 

Once we were happy that we kept the ‘full stop’ to this vicious cycle. We kept a democratic step forward by adding a 17th amendment to our constitution where the political appointments by the executive was constrained believing the fact that an impartial and an apolitical person needs to be heading the judiciary to ensure its independence for the betterment of this country.

 

At this juncture, I personally do not want to stand with or against the impeachment against the CJ. The political power struggles are such the friends and enemies are never permanent. If she goes back to good books, we will become the jokers and she might even give a judgement against you and I.

 

I strongly believe that the ideal citizenry demand at this juncture therefore should be to bring back the 17th amendment into the constitutional framework and to the practice. Let the ones who play politics face the music as the independence of the judiciary cannot be maintained by making the Supreme Court a favourite of the politicians.  Therefore, in order to maintain the independence of the judiciary, it needs to be kept away from the political power struggle.

 

Im sure the citizenry of this country will continue missing the 17th amendment to the constitution every time the appointments are made and impeachments are brought it. Hence, the broader demand of each and every moment of this should be to bring the 17th amendment back to practice.

 

 

 

 

Should Nepal go back to a Monarchic System?

I made my first visit to Nepal about a month ago. With a rich culture and the Himalaya’s as a backdrop I thought it is such a romantic place to be. In fact, I happen to hear that it is one of the world’s poorest countries as well. Leaving the UN decided poor conditions aside; as someone who believes in democracy I agree that Nepal is another poor country in South Asia that is suffering due to lack of citizens, or a civil society for that matter.

 

The present politicians in Nepal have failed to agree on a constitution to date since the decade-old Maoist insurgency ended in 2006. Prime Minister is motivated to call fresh elections. Nepal’s Supreme Court has rejected a proposal by the interim assembly to extend its term by three months so it can draft a new constitution. Three political parties have resigned from Nepal’s Maoist-led government as fears grow that the country is descending into constitutional chaos. The country is in a real anarchic situation.
Nepal is a new democracy. Democratic politics was introduced to the country only in 1991 after popular protests. Maoist rebels waged a decade-long campaign against the monarchy and were successful in appointing a democratic government with Maoist-dominating it. During the past 6 years the interim government has failed to build consensus on the principal law of the land: the constitution. There could be so many reasons and justifications for the ruling and opposition parties for this move.

 

There seems to be no collective vision for Nepal in the post-war era. Vision for the country as I see it is ‘compartmentalized’ based on ethnicity, political party, socio economic status and position in relation to political power etc. While there seems to be no consensus among the politicians in relation to the key drivers of the state should be, the government continues on its unimpeded ‘top to down’ approach. As a result I see constant disagreements amongst actors involved in Constitution Making as to options should be followed during its post war phase. Although there have been discussions during the past few years amongst policy makers, they do not seem to be bringing any intervention or impact in practice or any solid outcome. Hence, there are no ‘concrete steps’ taking place to drive the state towards a collective vision to benefit everyone in Nepal: to build consensus on power-sharing arrangements in the country.

 

This anarchic situation is one of the best examples for the failure of democracy in another state with mere voters with no citizens. If or when elections take place there is definitely going to be a danger of violence. The political campaign events will of course be the new battleground for increasingly divisive communal issues. Do these conditions assist Nepal to complete its transition to peace and democracy?
In this context, the time has come to rethink whether democracy is really for countries like us; Nepal or Sri Lanka. We wish to have an all mighty king above all of us like an old Sri Lankan poem says “Oh dear ants, even you have a king, but not us”. Having democratic structures in place will not bring democracy and peace to our countries. If the legitimacy of the republic scenting the opportunity for a revival and leaves the country in complete anarchy, monarchic system probably is the best that suit the people.

Returning sovereignty to the people?

The general assumption of ‘the return of sovereignty to the people’ implies that Governments across the world regularly call upon sovereignty to demand that the international community “mind its own business” while they will manage their own state of affairs. They declare that the sovereign rights to be free from international intervention and to permit the countries to carry out their domestic affairs subject to their own discretion. This has also been one of the famous arguments articulated by the Sri Lankan government in the present context. We hear them blaming the USA and various European states about their intervention on Sri Lankan affairs.
What is the sovereignty that we are talking about? Relying on classical interpretations of sovereignty, it is understood as the power of the people. Hence, sovereignty ideally lies in the people and any government is entitled to sovereignty rights only as the legitimate representative or a mere trustee of the people. Therefore, the government is bound to fulfil its duties to the people that they have promised at the time of the social contract made during a democratic election.
However, through-out history and even today, we have seen how governments manipulate the emotions of the people in order to claim sovereign rights and maintain power. Creation of Pakistan, 1983 ethnic riots in Sri Lanka and Ayodhya incident in the recent past in India are some of the ideal examples where the power holders manipulated the emotions of the people for petty power agendas. In fact, the question that I am trying to race via this article is, whether the finger should ideally be pointed at the power holders or the people who claim to hold sovereignty but who has no proper sense about the powers they hold for being citizens.
In that regard, the key issue to address is whether these new nations really have ‘citizens’ for that matter? If these countries actually had people with civic consciousness, how possible would it be for the power holders to manipulate them based on petty power agendas? One may argue that the sovereign rights are lost when governments commit less than the most egregious manipulation of human emotions and needs. For me it’s not the case. It is ideally lost due to ‘stupidity’ of the people themselves, who claim to be the owners of the same sovereignty.
What is the plight of a state when the governments are waiting to manipulate the sovereignty rights and when people are not with a civic consciousness, not to understand that their rights have been manoeuvred? The present situation in Sri Lanka or India or any other South Asia state for that matter is not different to the above context. A country of that nature is like a fleet of ships that has no direction.
In this context, I strongly believe the biggest challenge for new nations through-out is lack of a civil society. West may say it’s our ethnic conflicts or corruption or mismanagement etc. But the bottom of the problem is that we have no people with civic consciousness in this part of the world. They will vote at elections based on the gifts they get from the politicians beforehand. Once elected, they are not bothered at all about what their representatives do. Even though they have a concern they will never stand against it. This shows how an ideal pale society functions. Therefore the answer lies in not demanding to return the sovereignty to the people, but for ensuring that we understand the meaning of the sovereignty that we hold as peoples.