Focus on Rights

Redressing the non-functioning of the 17th amendment
The sickeningly extreme extent of hypocrisy and obfuscation in our society is well manifested by the latest furore over when the Presidential elections should be held. All parties (major and minor) are currently shouting themselves hoarse over this and the amount of minor treatises written to the newspapers or proclaimed in public by individuals of all varieties on the vexed question as to whether it should be held in 2005 or 2006 has been staggering.

I am constrained to question as to what could conceivably have been the ultimate result if all this furious energy and interest was expended on the satisfaction of a pre-condition to the holding of any election in any year; namely the effective appointment of the Elections Commission (EC)? Or perhaps, if this focus was directed towards the due functioning of the Constitutional Council (CC) itself, set up under the 17th Amendment to ensure non-politicised appointments to public bodies including the EC? Presently, the CC is non-functional following the end of term of its predecessor body some months back.

Would not the political establishment have bestirred itself to action if there had been a public outcry in this regard? Unfortunately these questions appear to be of negligible concern for all except a few in this country.
One exception in this respect has been the recent forthright comments by Chairman, National Police Commission (NPC), Ranjith Abeysuriya who pointed to the dismal situation that would prevail if the CC remains in abeyance any longer.

The NPC has been under constant fire by politicians including the most inexplicable recent assertion by Minister Ratnasiri Wickremanayake that the Inspector General of Police (IGP) should have more say in regard to the functioning of the NPC. Minister Wickremenayake, it appears, ought to be imperatively tutored on the basic purpose and objective of the 17th Amendment passed by his own party in power which advocated the exact contrary to his unwarranted outburst. Such eccentricities aside, all political parties have been characterised by similar unconcern regarding the proper working of the 17th Amendment. For instance, the UNP’s proudly touted Jana Bala Mehayuma had, as its primary aim, the holding of the Presidential Elections this year (along with some other minor objectives tagged along in order to make the exercise less blatant), obviously for the sole edification of its Presidential candidate. To add the proverbial insult to injury, we are told also by the Government that the delay in the constitution of the CC was due to the delay of the Opposition Leader in making his appointments to the CC.

To my knowledge, this has yet not been denied by the office of the Opposition Leader. Neither have we been told that the appointments will be made speedily and the CC will soon be operational. Instead, there is that familiar deafening silence. This silence remains the reason why the UNP cannot take the moral high ground as opposed to the SLFP/UPFA combination in relation to issues of constitutional governance.

Obviously, the less said about the governing SLFP/UPFA in this regard, the better or for that matter, the JVP whose constant attempts to frustrate the proper working of the NPC last year may be recalled in this context. The deadlock in the forming of the EC, as is common knowledge now, was occasioned by President Chandrika Kumaratunga refusing to appoint former Supreme Court judge Ranjit Dheeraratne to its chairmanship (on the recommendation of the Council) purportedly on the basis that the latter had UNP connections. This allegation was dismissed by the then CC members (which, one must not forget, included nominees of the Kumaratunga administration itself).

Thereafter, the recommendations that were re-forwarded to President Kumaratunga were not accepted despite frequent pleas of the current Elections Commissioner that the EC be speedily constituted since he himself was ailing in health. His appeal in this regard to the Supreme Court went un-answered. A similar appeal filed by a public interest group in the Court of Appeal last year calling upon the court to compel President Kumaratunga to appoint the members of the EC (see Public Interest Law Foundation vs the Attorney General and Others, CA Application No 1396/2003, CA Minutes of 17.12.2003) also failed.

In the latter instance, the argument was interestingly that the basic features contained in Article 41B of the Constitution (brought in by the 17th Amendment) did not permit the President to wield unfettered powers in respect of the appointment of the Elections Commission. Accordingly, she had no discretion but to make the appointments once the Constitutional Council forwarded the recommendations.

However, the judges did not accept this contention holding that Article 35(1) of the Constitution gives a ‘blanket immunity’ to the President from having proceedings instituted or continued against her in any court in respect of anything done or omitted to be done in her official or private capacity, except in limited circumstances constitutionally specified in relation to inter alia ministerial subjects or functions assigned to the President and election petitions. The petition was held not properly constituted in law. (this instance needs to be distinguished from cases where actions of subordinate officers are sought to be justified, relying on the orders of the President. Such reliance has long been held to be unconstitutional).

These judicial decisions illustrate the grievous plight of citizens when processes of constitutional governance are subverted and judges are themselves bound by constitutional provisions that do not permit them to go beyond a particular point in striving to redress an obviously illegitimate status quo.

This column has pointed out previously that one possible legislative solution to this continuing impasse is to amend Article 41B in order that where there is disagreement between the President and the CC regarding the recommendations of the appointees, the President may request the CC to reconsider its recommendations for reasons stated. If after reconsideration, the same recommendation is made, the person recommended will be deemed to have been duly appointed if the President fails to make the appointment within one month.

Admittedly, the working of the CC in its previous term of existence was far from perfect, the many manifestations of which needs to be analysed at a different point of time. However, it cannot be maintained that the country is better off without such a body acting at least as some bar to arbitrary presidential action in respect of appointments to crucial public bodies. Imperatively, the CC needs to be constituted. Imperatively, the EC needs to function. This is equally, if not more important than deciding as to when the Presidential elections needs to be held.

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