Focus on Rights

Reflecting on the Rajapaksa presidency and the demise of the 17th Amendment
On state television this week, a frontliner of the Rajapaksa administration, DEW Gunesekera advised all those who did not take kindly to this week's presidential appointments to the National Police Commission (NPC) and the Public Service Commission (PSC), to take the matter to court for judicial scrutiny.

As winsome as his smile was and as ostensibly innocuous as his advice was, this quite amazingly blatant justification of the presidential appointments to the constitutional commissions, bypassing the requirement of approval of the Constitutional Council (CC) defied reasonable explanation.

Equally, this particular minister seemed to be all at odds on the exact purpose of the 17th Amendment itself. While professing the need for further amendment of this constitutional amendment (a view held in common by both the detractors and supporters of the 17th Amendment), he however reiterated, mind-numbingly, that Parliament should retain firm control over these appointments.

Perhaps, what is needed is a speed learning course for this minister among others, in regard to the basic lesson that independent commissions mean exactly the opposite of control by Parliament or the Presidency. In any event, the 17th Amendment, by setting up a primary Constitutional Council, nominations to which are made from the constituent political elements in Parliament provides for exactly that first measure of parliamentary intervention. However, this is supplemented by that needed degree of independent decision making by non-politicians in order to achieve what the 17th Amendment dreamt of; namely a non-politicised police, judiciary, elections process and public service.

While it is true that the 17th Amendment needs further finetuning, this is in the context of greater powers to be given to the Elections Commissioner, provision to be made in the event of disputes arising between the Presidency and the CC in the recommending of appointments and specific time limits to be set for the mandatory constitutional duties to be satisfied among a plethora of other deficiencies that have been exposed in the past several years of its implementation. What it assuredly does not need is greater legislative or executive control of the purportedly independent commissions that it creates.

This week's appointments to the NPC and the PSC by President Mahinda Rajapaksa in open disregard of the precondition of approval of a duly constituted CC constitutes, of course, the executioner's blow to this constitutional amendment. And the flawed arguments put forward by minister DEW Gunesekera and his ilk is but a typical example of the basic inability of politicians to grasp the importance of the concept which the 17th Amendment sought to constitutionally enshrine. There is no doubt that more sophisticated apologists for these Presidential appointments will argue that President Rajapaksa had no choice except to do this, (refer the famous doctrine of neccesity), given that the smaller parties in Parliament had still been unable to reach consensus on the nomination of the remaining member to the CC.

There is also little doubt that judicial dicta allowing such an exercise of presidential powers can be found and exhibited at the correct moment, much as the unfortunate rabbit was produced from the magician's hat. Indeed, I desist quite consciously from examining such dicta in the wake of a growing and quite overwhelming contempt in regard to the manner in which the law, the Constitution and the courts have now come to be abused in this country.

This is the dangerous result of constitutional subversion; that ultimately public respect for the first law of the land will degenerate into public contempt and therein Sri Lanka will not only lose its bearings as an institutional democracy but also be cast into the lot of despised outlawed nations in the world.

Essentially, linguistic and constitutionally subversive sophistries will not serve to detract from the fact that, a specific constitutional provision that mandates a specific constitutional act had been disregarded blatantly and unconscionably. In doing so, for the first time in decades, an incumbent in the office of the Presidency has taken upon himself to trespass upon basic norms of constitutional propriety in a manner that his predecessor, notwithstanding all her ruinously ill timed and personally motivated actions in office, could not quite bring herself to do.

Problems resulting from the nine new presidential appointments to the PSC and seven new appointments to the NPC have been referred to elsewhere in the news pages of this newspaper. The appointments have meanwhile resulted in nary a whimper from the ranks of the public, excepting of course, the predictable cries of protest by the few remaining civil rights monitors left in the country. The main opposition, the United National Party has not yet stirred itself to make public its reaction to this amazing example of constitutional impropriety. In other countries, such an usurpation of power would have led to public protests and demonstrations.

Effectively, though in a somewhat more stringent constitutional sense, this is what Nepal's King Gynanendra did some years back in the Himalayan kingdom resulting in a complete revolt by the country's academics, activists, political parties and ordinary citizens which continues to date. There is no doubt that some measure of democratic governance will emerge for Nepal out of this current travails given the boldness with which its people fight for their liberties. In contrast, Sri Lanka, it is to be expected, notwithstanding its so called democratic legacies of rule, will sink deeper into a morass of collective degeneration.

On March 14th 2005, a writer to the popular Dawn newspaper in Pakistan, Ahmed Bilal Mehboob, executive director of the Islamabad-based Pakistan Institute of Legislative Development and Transparency pointed to Sri Lanka's 17th Amendment to the Constitution as an excellent example for countries in South Asia to emulate. In his succinct analysis, he advocated a similar constitutional experiment for Pakistan, particularly in bringing about greater accountability in the elections process.

Similar compliments had been extended towards this country by Indian and Bangladeshi academics and writers in referring to the provisions of the 17th Amendment. Its passing in 2001 held out a great promise of decent processes of governance and a release from the plague of politicisation which had sapped the public service in the past several decades. Now, these are all futile hopes.

But perhaps, this was the very fate that the 17th Amendment was destined to undergo in a country where cosmetic constitutional changes have proved to be woefully insufficient to correct far more fundamental defects in its democratic functioning. The 17th Amendment was meant as a constitutional palliative to meet the public call for greater institutional democracy. But when politicians do not respect democratic norms, the Constitution or indeed, the law and where neither the public nor the attack guards of democracy such as the media, activists and academics have the will to collectively protest, such constitutional palliatives are destined for the miserable end that has now befallen the 17th Amendment.

And what are we to expect now in the future? Will pending appointments to the judiciary and to the remaining commissions such as the Judicial Service Commission and the Human Rights Commission also be made by the office of the Presidency, using a similar doctrine of necessity? Will we then also have the entire Constitution replaced by a new document based on this same reasoning? The next segment of this exciting political cum constitutional cum possibly judicial drama needs to be looked forward to with bated breath.

In sober retrospect however, the disregarding of the 17th Amendment by the combined political forces of the government and the opposition, (as the reality reflects now), has even greater significance than its application to these two Commissions. It means that we are now living in a country that has let go of its dreams for sanity, unity and an honourable way of life for its citizens within a framework of duly enforceable constitutional rights and standards. Undoubtedly, this is a frighteningly intense personal truth.

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