Implementing 13th and 17th Amendments to the Constitution

by Sarath Wijesinghe

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It is easy to pass legislation. Implementation is the most difficult part of the Legislative and Executive process. Both 13th and 17th amendments have become part of our Supreme Law. The 13th Amendment is partly implemented and the 17th Amendment is hardly implemented. If a set of laws is not enforceable it should be amended, abolished or not implemented.

Provincial Councils were proposed to every province by Article 154A, of the Constitution, based on the Indo-Sri Lanka Accord of 1987 which was imposed on us against our will. It was meant and established as a solution to North-East issue. It is only after 20 years, that a duly elected Provincial Council was established for the East by the people.

Credit goes to the Armed Forces for the liberation of the province, President Rajapaksa for taking correct and prompt political decisions, those who were willingly transformed from terror to a peaceful democratic process and generally the people of North and East who exercised the power of franchise without fear or favour.

East has been a war zone for over 20 years. The LTTE has set up illegal court houses, police stations, banks and administrative structures using the resources and facilities provided by the people of the rest of the country.

Education, Health, Power, Telephones and all other facilities have been provided by the Central Government to the East and North in the past without proper structures for collection of taxes or revenues to the Central Government.

Nowhere in the world had such facilities provided to terrorist controlled areas at an enormous cost. The Chief Minister of the Province will be responsible for the collection of revenue and bring the lost glory with resources in the region and sweat of the people on the soil in the area.

He has picked up the right man for the right job. This shows he is capable of making other high post appointments too in par with the sacred and high responsibilities thrust upon them to act in a fair, firm and kind manner.

“People” in the South will no longer be compelled to dump colossal sums of their hard-earned funds for the running of the other “Failed Provinces”.

The ethnic proportion and the mode of exercise of franchise have given a ray of hopes for ethnic harmony, fair play and equality. Transformation to the democratic process of one time armed cadres is remarkable.

Infamous CFA between Ranil and Prabhakaran which recognized and demarcated certain parts of the North and East as LTTE - held areas has been fortunately abrogated by President Rajapaksa. Today there is a sigh of relief for Sri Lankans as the East will no longer be a burden to the South.

“Rice Bowl” of Sri Lanka will be productive for the rest of the country and the future economic development in the province will lead the country to its past glory and future prosperity. During the elections political decisions were taken out of racial or religious considerations. People enjoy freedom after 20 years.

Terror, Terrorism and terrorists have lost to democracy and democratic values. Human bond has developed above politics and other petty considerations. Political leaders and people are willing to be accommodative and reasonable.

Pillaiyan’s statement that he is not concerned about the post of the Chief Minister is significant, which speaks thousands of words of his remarkable transformation to democracy, magnanimity and our bright future. These are good lessons to other politicians as well.

The decision taken by the President on the appointment of the Chief Minister too is to be admired as he has long thought and considered all aspects in arriving at the most crucial decision of the hour, which has laid the foundation for future ethnic harmony and international recognition.

Proponents and promoters of the 13th Amendment expected the North and East provincial council to be a solution to the terror campaign initiated by a few misguided group of people in the North and East. It is so sad that It took 20 long years to implement the hurriedly drafted and presented legislation in a difficult and tense situation in the East..

They say whatever happens, happened for the good in some way. Thank God - Prabhakaran point blank refused to accept the Provincial Councils in 1987 for different reasons. His demand is nothing less than Eelam.

He is aware that he will not be democratically elected and not survive in a democratic structure. Had he accepted Provincial Councils, it would have been disastrous to the rest of the country and the entire world. Pillaiyan though called a “Monster” by the opposition has proved himself to be a “Teddy Bear” from his present conduct and statements he made.

In Nepal Prachanda has embraced democratic values, IRA denounced violence, laid down arms and entered the democratic process, JVP - one time terror group has embraced democracy and active in the mainstream politics, What is the difficulty on the part of Pillaiyan to be a democrat?

He has proved to possess the qualities of a democrat by his conduct during the recent election campaign and the subsequent statements.

On the other hand Muslims have co- existed with Sinhalese for thousands of years and were privileged by successive SLFP-led governments from the time of Badi-ud-deen Mohamood to the current Muslim Leadership. Their behaviour is commendable in this crucial and crisis situation.

No system is ideal. The PC system is defective and also a white elephant. But today we have no option but to make use of PC system and try our luck to develop our country in order to bring about peace and harmony.

There is no way that we can turn back from PC system as the Constitution is so rigid and not easily amended- especially the PC system which is so deep- rooted. On the other hand except the Somawansa faction of the JVP, all other political parties are in favour of the PC system.

TULF, EPDP. UNP, SLFP, MEP, and even Maha Sangha and other religious leaders are in favour of a solution based on the PC model. TNA though in favour are quiet due to the influence of LTTE. We hope and pray the TNA too be brave to take the correct decision. We are on the main crossroads in history and it’s time to “Grab” this opportunity in the interest of future generations.

The seventeenth Amendment to the Constitution was mooted by the United National Party, and Janatha Vimukthi Peramuna to prune the powers of the Executive Presidency when Mrs Chandrika Kumaratunga had promised in the 1994 election manifesto, to abolish Executive Presidency.

She was not serious in the implementation of the promise for obvious reasons. She was compelled to oblige UNP and JVP to bring hurriedly-drafted and quickly-presented amendment during her probationary government for her own survival, to be in power at any cost.

The 17th Amendment proposed a Constitutional Council for the appointment of Elections Commission, Public Service Commission, Police Commission, Human rights Commission, Bribery Commission, Finance and Delimitation Commission.

It was also the brainchild of JVP and UNP during probationary Government. With the JVP majority, Mrs Chandrika Kumaratunga was obliged to the demand of JVP and UNP for her to be in power at any cost.

The 17th Amendment was not properly implemented during her tenure of office. None of the Commissions is properly constituted and not properly or sometimes at all functioning due to inherent defects. Most appointments made by the President are excellent though the Constitutional Council itself is not constituted and remains a dead letter.

But life must go on and the President is bound to perform the duty entrusted to him in the capacity of the trustee of the nation for a given period. So far his appointments in the absence of a Constitutional Council are of expected standard.

Appointments of Judges and the acceptance of positions itself have proved the credibility and the acceptance of such steps taken by the President apart from other appointments such as the appointment of IGP and other high posts.

IGP post is falling vacant soon to be followed by other top posts such as Chief Justice, Attorney General, Auditor General and those specified in the Schedule to the 17th Amendment. President has proved himself that he will purely go by merit, honesty, ability and human kindness of the top-post holder.

The answer to the criticism of the opposition on the delay in the implementation is to make proper and good appointments as it has become imminent to appoint persons of “Ability, Honesty and Character” to the posts falling vacant without delay, following the theory of “Necessity” and the smooth running of the affairs of the nation for which the President is elected. How could a part of a carefully drafted Executive-modal Constitution be transformed to a different system in a mighty hurry?

Deliberations in the Parliament on the 17th Amendment on 24th September 2001 and subsequent events indicate the steps taken in a hurry to pass legislation quickly without detailed scrutiny. The best solution would have been to change the entire constitution into a Parliamentary model.

It is time to expedite the consultative process of the select committee on the 17th Amendment and explore new possibilities afresh by learning from mistakes and bad experiences which are costing the nation by way of funds and rate of development.Mahinda Rajapaksa has never promised to abolish the Executive Presidency.