Ratchet effect must protect constitutional rights

By National Peace Council

There has been an unprecedented public outcry against the draft 20th Amendment, which is presently being subjected to judicial scrutiny. Some of the most respected civic organisations in the country, including religious clergy, trade unions, the State Auditors Association and the Bar Association, have expressed their serious objections to the proposed constitutional amendment. 

Nevertheless, the Government appears determined to strengthen the presidency at the cost of other institutions. The Government’s public position has been that the Presidency needs to be provided with the necessary powers and immunities to proceed with the urgent task of developing the country. The National Peace Council urges the Government to reconsider its position.

Constitutions evolved over the centuries to be a compact between the Government and people, to protect the people from abuse by the rulers whether for good reasons or bad. The protections of human rights and the resources of the people through judicial review, financial audit and parliamentary oversight stems from this desire to protect the people from the caprice of those who lead governments from time to time. The National Peace Council notes that the draft 20th Amendment to the Constitution as it currently stands is an emasculation of the protections available to the people and also to other institutions of state available in the Constitution.

We note that the special committee of the Bar Association has in its report stated among others, that “No person is above the law and to grant absolute immunity from suit is contrary to all known principles of the rule of law.” We are also concerned about the removal from the Auditor-General’s purview of the audit of the accounts of “companies in which the Government or a public corporation or local authority holds fifty per centum or more of the shares of that company”. The power to audit these accounts was expressly conferred on the Auditor-General by the 19th Amendment, which is now a part and parcel of the Constitution.

There seems to be a misunderstanding of amendments, which have been introduced from time to time are single and separate components of the Constitution. The reality is the current Constitution encompasses all amendments passed from 1978 onwards and is in fact the Sri Lankan Constitution in its entirety. While the 19th Amendment was passed into law with only a two-thirds majority and without the approval of the people at a referendum, the same is not necessarily applicable to the 20th Amendment. The National Peace Council holds to the view that there is a ratchet effect in which human rights and democratic rights once given cannot be taken back on the same basis. The same is true of key aspects of accountability imposed on the State and its powerholders to protect the rights of the people from abuse and pillage, whether it be audit or rule of law. 

We also note that the 19th Amendment was approved by 215 of the 225 Parliamentarians voting in favour and only one opposing it. The 19th Amendment is now part and parcel of the Constitution, and the repeal of its clauses is subject to the protections available in the Constitution. Therefore, any constitutional amendment to its content should have a similar consensus in Parliament. Until there is recognition of pluralistic values that encourages dialogue, respects the dignity of others in all circumstances and integration of differences that guarantees a genuine and lasting peace, we run the risk of contributing to a system of government susceptible to abuse and thereby scuttle all our cherished democratic governance principles.