Repercussions of the 18th Amendment and the Decline of Democracy

“Power tends to corrupt, and absolute power corrupts absolutely.” – Lord Acton, 1887

The 18th Amendment will fundamentally transform Sri Lanka’s political system, stripping away the façade of democracy. The 18th Amendment will end presidential term limits, eliminate the Constitutional Council, increase the Executive’s control over appointments, and give the President the power to regularly attend and address Parliament. Its effect will be to remove vital checks on Executive power and further undermine Sri Lanka’s imperfect democracy.

Presidential term limits are critical to democratization. The concept of Executive term limits has been a part of discussions of democracy since its inception in ancient Rome and Athens. Without term limits, an individual and party may accumulate tremendous power. Incumbency advantages allow them to increase and preserve that power perpetually. The incumbent may rely on popular support, regime tactics, and opposition fragmentation to stay in office and set the country’s agenda ad infinitum.

The consequences extend beyond the immediate issue of individual accumulation of power over a lifetime. As power becomes concentrated with a single individual and party, the range of views within the party decreases and opposition parties weaken and fragment, diminishing the representation of diverse views in democracy. The weakening of opposition parties undermines electoral choice, as voters have fewer alternatives to the party in power. Government and politics stagnate.

Political party alternation is crucial to the development of a democracy. Political party alternation is more likely when the opposition faces a successor rather than incumbent, both because the successor does not enjoy incumbency advantages and because the opposition is more likely to unify when facing a new candidate.

Political party alternation, or turnover, is not just a symbol of democracy – it is essential to advancing democratization. Each successful turnover is a demonstration of democracy that increases legitimacy among domestic stakeholders and internationally. Awareness of the potential for turnover also makes officials and political parties more responsive to citizens and more likely to attempt to collaborate and reach consensus with other political parties. Following a turnover, the average improvement in Freedom House scores based on political rights and civil liberties among 20 electoral authoritarian regimes was 0.9 on a 7-point scale. By contrast, there was no improvement in these scores in the three years preceding government turnover in these countries.

In the absence of a Presidential term limit, corruption will increase within and outside of government. As an Executive and ruling party accumulate power, they become more likely to abuse that power. Parties are less vigilant in rooting out vice and officials are more prone to corruption when they perceive little threat of removal or electoral repercussion. Conversely, without the potential for political turnover, businesses and other non-governmental actors have a greater incentive to invest in bribing and corrupting government officials, whose positions are more likely to be long-term and secure.

The end of term limits will preclude institution-building, policy reforms, and training integral to the development of stable democracy in Sri Lanka. Incumbents will have decreased electoral imperatives and become less likely to generate new platforms and policies or improve existing institutions and infrastructure. With a single party remains in power and little turnover among government employees and appointees, relatively few Sri Lankans will acquire the knowledge and experience necessary to become part of democratic government.

The 18th Amendment will also expand the power of the Executive to make appointments, eroding the independence and power of other government actors and branches. The President will only have to seek the opinion of a five-member council comprised of the Prime Minister, the Speaker, the Leader of the Opposition, a Member of Parliament nominated by the Prime Minister, and a Member of Parliament nominated by the Leader of the Opposition when appointing officials to the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Allegations of Bribery and Corruption, the Finance Commission, and the Delimitation Commission. These far-reaching changes in the appointment process will affect agencies and actors responsible for essential human rights infrastructure and the provision of basic services and have the potential to destabilize or interrupt services.

Changes to the appointment process within the 18th Amendment present a special threat to the independence of the Judiciary. The President’s expanded appointment powers will extend to the selection of the Chief Justice and the Judges of the Supreme Court, the President and the Judges of the Court of Appeal, the Members of the Judicial Service Commission, other than the Chairman, the Attorney-General, the Auditor-General, the Parliamentary Commissioner for Administration, and the Secretary-General of Parliament.

Additionally, the 18th Amendment’s expansion of the President’s privileges with regard to Parliament will compromise the autonomy of Parliament. The prerogative to address Parliament and acquisition of full Parliamentary privileges will significantly increase the President’s influence on the Legislative branch, reducing the separation of powers.

Imagine the uproar that would be incited if a President of the United States ended presidential term limits and that individual and political party aggregated political power while the opposition deteriorated. If the President suggested reserving the right to appoint members of all government agencies and judges without any accountability to Congress, there would be widespread outrage. If then the President began to attempt to more actively influence Congress and participate in its function, Members of Congress would protest being subjected to interference.

Presidential term limits are a fundamental feature of modern democracy. In the United States, the 22nd Amendment states that a President can only be elected to two four-year terms; any President who serves more than two years of a predecessor’s term can only be elected once. Although the 22nd Amendment was not passed until 1951, it only reified the two-term limit US Presidents self-imposed historically. Only Franklin Delano Roosevelt, President preceding and during World War II, served more than two terms. The last of the major modern democracies to set term limits, France, did so in 2008.

The majority of transitional democracies and electoral authoritarian governments also have term limits. Over the past few years, attempts to end term limits in Colombia, Kenya, Malawi, Mozambique, Nigeria, Ukraine, and Zambia have failed, with courts and critics citing the necessity of term limits to democracy.

Moreover, the prerogative of the Executive to address the Legislative body is specifically addressed in the Constitution in both the United States and France, among other democracies, because of its influence on the separation of powers and integrity of the Legislature.

The 18th Amendment will destabilize the Sri Lankan political system. Its effects will only grow with time. The Amendment removes essential limits on Executive power and cripples the Judiciary while reducing the independence and influence of the Parliament; further, it ensures political stagnancy and precludes progress. Political scientist Samuel Huntington proposed a “two turnover” rule: only after two successful political turnovers could a democracy be declared stable. By passing the 18th Amendment, Sri Lanka is regressing, destroying what democratic framework is in place rather than improving it.

by Rebecca Buckwalter-Poza, Sri Lanka Guardian