Checks and balances: Lanka’s Magna Carta moment

By Ameen Izzadeen
On a positive note, the current political crisis in Sri Lanka can be the country’s Magna Carta moment to chart a course to the pinnacle of democracy.
The developments since President Maithripala Sirisena on October 26 sacked Prime Minister Ranil Wickremesinghe have placed Sri Lanka on a constitutional cliff. But, if the power- greedy politicians do not drag the country into an autocratic abyss, the crisis could be a blessing in disguise to lead the country towards a democratic haven where the doctrine of separation of powers will be held supreme to remind politicians that the people’s mandate has to be exercised with responsibility. The power exercised by elected representatives is not their ancestral property to be abused at will but is a trust subjected to checks and balances and needs to be held sacred.
Those who abuse or betray the people’s mandate are no better than monarchs who, only a few centuries ago, taking cover behind what they called a divine right to rule, oppressed the people and amassed wealth by exploiting them. In this age of post-post enlightenment, politics is not for those who do not care a damn about democracy in their quest to establish autocracy though they make use of democratic instruments such as franchise and elections.
While most Sri Lankans are shocked by the shenanigans being unravelled in the political front, the happenings in the United States, however horrendous Donald Trump’s hubris-driven governance is, make that country a shining example in constitutional democracy. The Democratic Party’s victory at this month’s mid-term elections to the House of Representatives has been hailed as a people’s mandate to strengthen the checks and balances to control a maverick president before he could do more harm to the United States and the rest of the world.
With the Democrats now controlling the House and chairing the Oversight Committee, the Trump administration has now been well and truly checked. The Democratic Party-controlled House can now summon witnesses, especially with regard to the Robert Mueller investigations into allegations that Trump campaign officials had any links to Russia’s interference in the 2016 US election. For the past two years, Trump had survived scrutiny because both the Senate and the House of Representatives were under Republican control. But from January, Trump will not find it easy to beat around the bush.
To check the unbridled power of the executive president, especially when his party controls both houses of Congress, the mid-term elections, as provided for in the US Constitution, restore the balance of power by empowering the legislature to check the president, in keeping with the doctrine of separation of powers.
In another recent incident that proved how checks and balances worked in the US through the judiciary, a federal judge ruled that CNN reporter Jim Acosta’s “First Amendment rights overruled the White House’s right to have orderly news conferences.” The ruling followed CNN journalist’s petition challenging Trump’s executive order to withdraw his media credentials to cover White House events.
This week, there was another blow to Trump from the judiciary. A federal judge on Tuesday temporarily prevented the Trump administration from denying asylum to migrants who crossed the border illegally. The court in its interim order ruled that the president violated a “clear command” from Congress to allow the migrants to apply for asylum. In another move that underlines the doctrine of separation of powers, this week, Congress members, including Senators from the President’s Republican Party, challenged Trump’s statement defending Saudi Arabia over the killing of journalist Jamal Khashoggi. They sent a letter to the White House on Tuesday, urging Trump to officially trigger an investigation into whether Sauid Arabia’s crown prince ordered the assassination.
Sri Lankan politicians and their blind supporters would do well to look at how the US system works and how it upholds the balance vis-à-vis the separation of powers principles as expounded by French political philosopher Montasqueiu. In his great work, “Spirit of the Laws,” which inspired the the Rights of Man declaration, the French revolution’s gift to mankind, Montesqueiu said that in any form of democratic governance, the inclusion of the separation of powers is a sine qua non.
The Constitution of the United States was made based on the Montasqueiu’s model. Under this model, the political authority of the state is divided into legislative, executive and judicial powers. Montesqueiu asserted that, to most effectively promote liberty, these three powers must be separate and must act independently so that one arm of government can check the excesses of another. Separation of powers also refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power in one arm of government and provide for checks and balances.
It goes without saying that Sri Lanka’s 1978 Republican Constitution does not contain proper checks and balances. The framers of the 1978 Constitution justified the overconcentration of powers in the executive presidency on the grounds that it would ensure political stability which in turn would ensure rapid economic growth. However, without effective checks and balances in the Constitution, we saw how the powers vested in the executive presidency turned even politicians with democratic credentials into unchecked autocrats or even out and out dictators. Some even acted like virtual monarchs. Sri Lanka became a political lab for students researching on the validity of Lord Acton’s famous statement that power corrupts and absolute power corrupts absolutely.
In advanced democracies like the United States, a study of amendments shows they have been made to strengthen democracy and shut loopholes for the abuse of power. But in Sri Lanka, the history of constitutional amendments shows they have been made largely to make the president and the ruling party more powerful.
Of the 19 amendments made to the 1978 Constitution so far, eight could be identified as being politically motivated ones. They included the Second Amendment also known as the infamous Rajadurai Amendment and the preposterous 18th Amendment which can easily be labelled as the Rajapaksa era democracy killer, for it repealed the democracy-enhancing 17th Amendment.
It was depressing to note the manner in which the so-called Joint Opposition MPs expressed their opposition to many of the 19th Amendment’s pro-democracy clauses when it was being debated in Parliament in 2015. Instead of strengthening it, they extended their support for the amendement on condition that some clauses — for instance, as this column pointed out recently, the anti-defection provision — were withdrawn.
Yet, today at a time when constitutional governance has been undermined by what is being described as unlawful usurpation of state power by a cabal backed by the executive president, democracy activists heave a sigh of relief that at least some checks and balances introduced through the 19th Amendement have survived, especially the provisions to set up the Constitutional Council and the independent commissions on police, public service, the judiciary and elections. This became evident in the Independent Police Commisison’s decision to cancel the Police Chief’s directive this week to transfer an inspector probing several high profile cases linked to the Rajapaksa regime.
Yes, checks and balances involving the executive, the legislature and the judiciary — this country needs more of them to prevent abuse of power and protect democracy. The county is on a cliff. It can fall into a dark abyss or saved by the nobel intentions of those who recognise checks and balances.
(This article first appeared in the Daily Mirror, Sri Lanka)

About ameenizzadeen

journalist and global justice activist
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