Time to work in harmony

Seventeeth Amendment and beyond:

Sarath Wijesinghe

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The Seventeenth Amendment to the Constitution is the amendment brought in on Oct 3, 2001, incorporating new articles in order to take measures to ‘dilute’ the powers of the Executive and introduce measures to share it with ‘New Institutions’.

It has been a difficult task to change the complete outlook of an instrument carefully drafted for a specific purpose - as Ronnie de Mel said, taking part in the debate on Sept. 24, 2001 that “1978 brought forth the controversial Constitution of 1978, which laid the foundation for what some called the first Gaullist state in Asia - a rather perverted version of the Constitution of the 5th Republic in France promulgated by General Charles de Gaulle.”

The essence of the exercise was to establish a Presidential model - a mixture of American and French presidential power concentration. Amending a part of this is difficult. It is a carefully drafted piece of legislation by crafty and seasoned politicians in 1978.

The 17th amendment was haphazardly drafted and hurriedly presented to satisfy the JVP and the UNP who were pressurising the ‘Probation Government’ (Parivasa Aanduwa) to bring about the promised changes quickly.

It is sad, yet true to state that it is a failure though drafted and presented with best of intentions. Now the nation suffers for steps taken by inexperienced politicians. The 17th amendment is at a stand still!

Constitution of a state is the supreme law which is the source of all other subsidiary legislation. It has to be clear, straight and enforceable with ease and clarity. On seeking clarity and smooth running of the state it has always been the practice to trace back the source of law and intention of legislature.

Quote from Donoughmore Commission gives food for thought - ‘The powerful engine of authority must be prevented from running amok. It should be made clear, carries the necessary innuendo of good or bad faith’. This quotation shows that clarity and practicality are essential to the smooth flow of a constitution.

Unfortunately the 17th Amendment lacks clarity and is full of grey areas. It has been a non starter from the beginning. A deliberation of the legislature in the Parliament at the debate is a reflection of the drafter’s intentions and motives.

On Sept. 24, 2001 late MP Tyronne Fernando stated in the Parliament as follows: “Therefore you must be able to present a proper alternatives in the course of the day”. This shows the short space of time taken to draft the Supreme Law of the Nation. It is not fair to draft and present the supreme law in a day!.

The amendments brought about have taken a completely different meaning to the “core” of the constitutional machinery. Powers are vested with the Executive. It is not possible to dilute it in a day or two. It is not too late to correct the mistakes made through the Parliamentary Select Committee. How could the completed process of appointments of high posts and commissions be changed without extensive deliberations.

These are serious matters pertaining to the lives of the people and the future of the nation. It is true that there was an agitation from a section of the society to do away with the Presidential model. It is also true that the power is concentrated in the centre.

If powers vested are properly used that it is fine. But if it is in wrong hands they are bound to ‘misuse’ power. Mr V.Anandasangaree, TULF leader then too foresaw these flaws. He spoke at length and supported the amendments with certain reservations on smooth running of the constitution in future.

He stated in Parliament as follows “The TULF desires to point out that this is a seriously flawed aspect of the current proposals to establish a Constitutional Council. Similar deficiencies exist in the provisions relating to the appointment of the Commission.”

He is correct. Today 17th Amendment has come to a grinding halt. Constitutional Council is not functioning. The President has taken measures based on the “Doctrine of Necessity” performing his duties by the people vested more specifically under Chapter V11 of the Constitution.

One of the main aims of the introduction of the amendment is depoliticization of the key National Institutions. Machinery was proposed as a test-which is a system not tried at any other jurisdiction. Civil societies including Organization of Professional Association too took a keen interest in good faith for a change.

But the Constitutional Council set up by the 17th Amendment is as politicized as before. Earlier the President took full responsibility of the appointments. Despite few problematic areas, the appointments made were good.

According to Article 41A the Prime Minister, Speaker, Leader of the Opposition, One person appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the opposition,a person from other political parties of the Parliament other than the party belongs to the Prime Minister and Leader of the opposition consist the Council.

All this is politicos and people with political affiliations and colorations. It is hard in this country to find non politicians as the society is fully politicized. There is no place for the civil society and depolitization in the proposed amendments. OPA and civil societies silenced from 2001 and suddenly got up clamouring for something impossible and unprofessional..

There is a communal coloration by nominating people to represent minority interests but the proposals which is discarded by the society. Society demands equality, protection and preservation of individual and collective human rights all the time.

Communalism was rejected by the Report of the Donoughmore Commission (CMND 313-page 39… It says.. “the communal representation is as it were a canker on the body politics, eating deeply and deeply into vital engines of the people, breeding self interest suspicion and animosity poisoning the new growth of political consciousness and effectively prevent the development of a national and corporate spirit” Unfortunately by 41A(4) communalism was reintroduced and made part of the machinery.

Intention of the legislator was echoed during the debate the Parliament for the 17th amendment. Constitutional Council established is vested with powers to constitute a Public Service Commission, National Police Commission, Human Rights Commission, Commission on Bribery and Corruption Finance Commission, and Delimitation Commission and recommendation for the appointments of Chief Justice and the Judges of the Supreme Court, President of the Court of Appeal, Members of the Judicial Service Commission, the Attorney General the Auditor General, Inspector General of Police the Parliamentary Commissioner for Administration and Secretary General of the Parliament.

The procedure of the appointments and continuity is very complicated and not practicable. All the pitfalls and unforeseen circumstances in the proposals have not been looked into. Due to the pressure and deadline of the JVP there was no room for complete deliberations for a thorough study.

It was an ad hoc and haphazard work in a hurry .JVP is an inexperienced group of members who were willing to experiment the hypothetic propositions aimed at attacking the core of the Presidential System on which the entire Constitution was based on. Therefoer it is inevitable to meet practical difficulties in implementation. Section 41C reads as follows” No person shall be appointed by the President to any of the offices specified in the schedule to this article, unless such appointment has been approved by the Council upon recommendation made to the Council by the President”.

But there should be a Constitution Council for the President to act upon.

President should act according to the Constitution and the mandate given by the peoples for a specified period. He has pledged in his promised document “Mahinda Chintana” the document in which his proposals for the future of the Nation is laid out. Mahinda Chintana has conceded that power is given by the people for a short period to His Excellency in the capacity of The Trustee of the Nation.

It says that: “A ruler is only a temporary trustee and not an owner of your children’s heritage” In a situation when the Supreme Law is not functioning due to some technical difficulties it is incumbent on the Head of the State to take appropriate measures to perform the mandate given by the Nation for a given period of time

Constitutional Council should be appointed according to the Constitution..

It is unconstitutional to act contrary to the procedure and the conditions laid down. It is the machinery by which the respective commissions and the heads of institutions are appointed, without which the government machinery will grinding to a halt.

State will not function without the Attorney- General, Inspector General of Police, Auditor General, Secretary General of the Parliament, Judges of the Supreme Court and the, Court of Appeal. His Excellency has quite correctly made necessary appointments as there is a lacuna in the existing system to go through the Constitutional Council. His mandate and intention are clear.

This is the procedure adopted for the last 30 years successfully. All the successive Presidents performed their solemn duties to the best of intentions and abilities. There is absolutely no argument on the quality experience and seniority of the individuals appointed for high posts by the President which can not be kept vacant.

How could the Government machinery run without a Inspector General of Police, Attorney General or the Judges of Higher Courts ? The complaint by many is the President in not following Article 41C which can not be implemented due to non existence of the Constitutional Council.

There is controversy after controversy on the appointment of the members and the Council. President is unable to act alone. The Speaker and the Leader of the Opposition the other political parties and those others involved too are a part of the system to be on motion.

Measures have been taken to appoint a Parliamentary Select Committee to take steps to propose measures for necessary amendments and it is time to civil society including the OPA to take an active part in the process..

Organization of Professionals in Sri Lanka (OPA) is the most powerful and authentic professional body in Sri Lanka. It is also one of the main initiators of the 17th amendment. Their involvement in this exercise is genuine and useful. Professionals and professionalism are important components to any civil society.

They too are bound to act constitutionally and professionally and act as a guiding force and on advisory capacity to any government in power. They are a part and parcel of the Government machinery and should act with restraint and sense of responsibility. This writer is one of the founder members and a life member of the OPA which is active and performing their duties to serve the nation to the maximum.

OPA may send hard hitting letters make representations and make use of the entire machinery to assist the Government and the President in power.

People have given a clear mandate to the Government and the President for a specific period of time .But calling the political parties to impeach the President is unprofessional as there are many other avenues available to bring about a solution accepted to all parties in a professional way.

It is a salutary situation that OPA has had a useful and fruitful dialogue with His Excellency and it should continue instead of taking measures to impeach and strain the good relations developed between the professionals and the President.

It is grave and serious to state that the President is intentionally violating the Constitution when it is blatantly clear that it is imminent that the appointment should have been made as a matter of urgency and sheer necessity. The President has power to do so in the absence of a Constitutional Council. President should act upon the requests of a constitutionally appointed Constitutional Council and not otherwise.

On the other hand today we are in the main cross road of our history. 25 years of bloody war waged against the nation by a group of misguided citizens of our country is about to end militarily and politically.

It is done in the most professional way aiming at granting equal rights to all citizens- not the reasonable rights - based on Mahinda Chintana - the document on which the solutions and the procedure for the future is laid down. It is the duty of every citizen to rally round this program setting aside political and all other differences for a short period in the name and interest of the Nation

OPA and the President of the institution is doing a great job. We are matured professionals and should not be over enthusiastic. We should not resort to short cuts. We are responsible professionals who are being watched by our nation and the entire world.

During the last three years ‘smaller parties’ could not decide on the nominee to the Constitutional Council. (By the way even the word smaller parties are controversial and lead to further complications and grey areas) Now the new appointee to the Constitutional Council too has a problem. Until it is sorted out and the deliberations of the Parliamentary committee are over we have to be patient lest we get into more and more complications.

President and the Speaker have to work together in bringing about an amicable solution. Until such time the State must be functioning smoothly, especially when there is war on terror and the world is eying on us. It is our country and our people.

He is responsible to the Nation and in such a situation the President has no option but to make necessary appointments forthwith. The appointments are imminent and actions should be taken constitutionally.

The Judiciary and the Attorney General has accepted this position by accepting appointments and serving the nation based on the appointments made according to the Constitution, and the mandate entrusted to the President by the people and also based on the ‘Doctrine of Necessity’ for the smooth running of the State Machinery.

Let us be frank and pragmatic. The commissions appointed were not up to expectations. Expected standards of independence and competency have not been shown and it is as bad as the 13th amendment which is a failure and a white elephant. The 13th Amendment was brought in as a result of the Indo Sri Lanka Accord.

We mishandled foreign relations and got into to difficulty by antagonizing India which was then the regional power. Provincial councils were established to bring about a solution to North and East issue and all these days Provincial Councils were set up in other areas spending colossal sums of funds and not in the North and East for which it was meant.

It is only after 20 years that President Mahinda Rajapaksa has taken measures to conduct elections in these areas mainly to bring in the misguided groups to the democratic process and to maintain order peace and loss prosperity.

It is good news that almost all political parties including armed and Para military groups are keen to take part in the polls. The 17th amendment is also going through the same difficult process.

These are lessons for the future to be careful in bringing about drastic changes. It is good for OPA to be a leader in this process. It is opportune and time for them too be involved in the deliberations with whatever the government in power and assist in formulating a proper system.

There are many drawbacks. For example the commissions appointed should have been appellate or advisory bodies. Police Commission should not get involved in day to day matters of the Police force. This applies to all other bodies set up under the amendment. Unfortunately the promoters and drafters of the 17th amendment expect idealism and utopian system which is not practicable on this planet.

It is time for the OPA and all other Civil society organization to work hand in hand with any Government in power and the President - a person who can work with- for a better future for our people.