The Sri Lankan parliament has passed the eighteenth amendment, which removes the two term limit on a President and transfers to the President the power to appoint individuals to commissions that, prior to the amendment, had been intended as quasi-independent bodies. Though the amendment itself has nothing to do with the ethnic question (and it is deliberately intended not to address that issue) it has consequences for those seeking a just solution to the island’s protracted problem that have to be acknowledged. A full list of the changes contained in the eighteenth amendment can be accessed from other places (see for instance http://www.groundviews.org/2010/09/02/the-18th-amendment-to-the-constit…) and numerous analysts and observers have commented on why this is a regressive step for the Sri Lankan polity in general (http://www.youtube.com/watch?v=OAT8WpN72NY), so this article will not look at those, but rather focus on the effects on this constitutional change on the ethnic question. 

The most significant alteration introduced by the amendment is the change to Article 31 of the Sri Lankan Constitution, which sets the two-term limit on all Presidents. While others have focused on the possibility of authoritarianism as a result of the incumbent being reelected continuously – which is no insignificant matter – this also has practical consequences for the ethnic question and how other players (such as the Sinhalese public, the Tamil population, the Diaspora, the international community, etc) deal with Sri Lanka in the future. For by removing the 12 year maximum limit for any single President, this amendment makes the current President and his government a ‘fact of the ground’ that has to be dealt with.

For those who saw the (current) problem in Sri Lanka as a recalcitrant leadership and a corrupt regime, which at the most could only last another few years before it had to give up power, the ground reality has changed. The alteration to Article 31 (in conjunction with some of the other alterations, such as to the powers of the Elections Commissioner) have made it easier for the incumbent to remain in power and have made the Rajapaksa family a reality in Sri Lanka that will last – potentially – for generations. From a Tamil perspective of course, this is an irrelevancy: as this paper and other Tamil commentators have long argued, the issue is not the current government or leadership, but rather the institutional and structural inequalities within the country and these will not be changed even if the President changes. But for those who disagreed with the Tamil perspective, for all those who thought they only had to hold out for another six years, it is no longer possible to take a waiting approach – regime change is not forthcoming.

Similarly, the other changes contained in this amendment also serve to establish the ‘facts of the ground’ of the type of state Sri Lanka wants to be: it is not just the current regime that is here to stay, but also that the hope for a better future, with independent oversight of the President’s powers has been removed. Though the failure to implement the seventeenth amendment makes its abolishment insignificant in practice, in principle, it strengthens the President’s grasp on power. These changes make the Presidential structures (regardless of whether the President is Mahinda or in the future perhaps Namal) something that all who seek to do business with Sri Lanka have to deal with – be it today’s Basil’s 10 percent and Gotabaya’s military permissions, or a future Yoshitha’s percentage and Rohitha’s permissions.

The restriction on the role of the Election Commission also serves to make it more likely that the incumbent will come back into power, again reinforcing the ground reality. The amendment limits the reading of any pronouncement by the Commissioner and more significantly, denies that body the authority to comment on (mis)uses of public funds by political parties. As the political party most likely to have access to public funds is the incumbent, this heavily tips the balance in favour of the incumbent government using public property to ensure their reelection. This is not to suggest that public funds are not currently used for political party purposes, but merely that in future the Elections Commission will not have the right to comment upon or stop these activities. Thus, the changes contained in the eighteenth amendment have made significant progress towards ensuring that President Mahinda Rajapaksa will be reelected for a long as he chooses to stand and if (when) he decides to retire, that his chosen replacement will have an unfair advantage.

As a aside, there are some who wonder why the President has chosen to introduce these changes now – he has another 6 years to serve after retaking his oaths in November 2010, so why the rush to bring about these changes. There are two possibilities. One is that this was the best time to ensure sufficient crossovers for a 2/3 vote in parliament: if the President had waited another few years, as economic conditions worsened across the country and close to another parliamentary poll, parliamentarians may have thought about the potential difficulty in gaining electoral support after crossing over to vote for this type of constitutional change. Another is that the international pressure (and quiet condemnation of his policies) is starting to be felt by the President’s regime, and he has chosen to play his hand now so as to announce the fact that he is here to stay, so that international actors spend less effort tempting government parliamentarians to the opposition and more effort ‘learning to work with’ the government. These are only speculations, but the facts in Sri Lanka support a combination of the above factors.

But having established that President Rajapaksa is here to stay, there are only two options available now to those who have to deal with Sri Lanka: either accept that the country is, and will remain, a corrupt, illiberal state, or do something to bring about a change. The consequence of the first option is significant: if Sri Lanka is accepted as a corrupt, illiberal state that cannot be changed, others may follow suit with serious repercussions for global order as evidenced by suggestions that the ‘Sri Lanka solution’ to dealing with ethnic issues is being considered by other states such as Burma. On the other hand if the decision is that the country cannot allowed to be a challenge to the global order and that something must be done to bring about change, then there is no longer a need to delay action in the hope that change from within will have to eventuate at least in six years time. Thus the ‘let’s give them time’ argument becomes invalid and inaction cannot be justified, especially for those who seek a just global order with Sri Lanka as a responsible and respectable member of the international community of states. Inaction now can no longer be justified and the international community has to start acting now – whether it be war crimes trials, sanctions or economic embargoes. Any failure to act now will be seen as support for the Rajapaksa regime’s policies of ethnic cleansing, economic discrimination and ethnically selective development – and thus support for policies inconsistent with global liberal order.