political arrogance and the defeat of the 17th Amendment
The recent opinion of the Attorney General, that
the Janatha Vimukthi Peramuna (JVP) cannot join with parties 'not
belonging to the party of the Prime Minister or the Leader of the
Opposition" in nominating the remaining member to the 17th
Amendment's Constitutional Council (CC) is significant.
This view is based, with great commonsense, on
the nomination papers of the political parties in the elections
preceding the constitution of the current Parliament, according
to which the JVP was unequivocally a constituent party of the Peoples
Alliance. Reportedly, the party intends to contest the matter in
However, the JVP needs to do more than merely
argue that it has the right to come within the ambit of Article
41A(f), (along with the JHU and the TNA). This will only lend credence
to those who question the party's adherence to democratic norms
It is undoubtedly a pity that this strongest and
most praiseworthy voice behind the very enactment of the 17th Amendment
would now abandon this high moral ground for constant waffling on
the current crisis. In 2001, after this constitutional amendment
came into being, memory recalls that the JVP, in fact, acted as
a mediator in getting the other parties to agree on their nominations.
Now, in contrast, it is seen as a major stumbling
block if not an enthusiastic partner with a Presidency intent on
cold bloodedly negating the 17th Amendment. Its collusive resistance
to constitutional governance is to be regretted. And while the party
may be peeved with one or the other of the members already nominated
to the Constitutional Council, this should not detract from its
obligation towards establishing the body itself.
Or is the JVP saying that it does not support
the 17th Amendment per se and that it would prefer appointments
to be made by sole presidential fiat? If so, then it has departed
wholesale from its avowed commitment in 2001 towards remedying a
highly politicized public service and deserves public contempt for
its expedient change of political heart. A non-compromised stand
both in regard to the implementation of the 17th Amendment as well
as its once equally strong position on safeguarding the independence
of the judiciary, (which too, it has now departed from), would have
pulled many skeptics to their side. It is this doubt, apart from
its cacophonic militancy, that has snatched away from the party,
a chance that it had to some extent earlier, of establishing itself
as a credible alternative to the country's two major parties.
From a general perspective, the open contempt
displayed towards the 17th Amendment to the Constitution by the
Office of the Executive Presidency resulted in darkly surrealist
happenings this week.
One apparent appointee, (a human rights lawyer
respected for his involvement in the human rights movement in Sri
Lanka), declined his appointment to the National Human Rights Commission
(NHRC), stating quite startlingly that he had known of his appointment
only after media reports. This testified to the appointment process
being conducted with a lack of gravity that was most unbecoming.
Two other senior legal academics had earlier,
declined to accept offered positions on that same commission. It
is a matter for relief that, at least, in their cases, they had
been consulted beforehand.
In somewhat predictable counterpoint, some minor
or relatively major stars in the judicial and legislative firmament,
(also put on some of these commissions), staunchly pledged their
commitment to appointments. In so doing, they also ironically flaunted
their disregard for the country's Constitution. Two former judges
of the Supreme Court are now respectively the purported Chairman
of the Public Service Commission (PSC) and the purported Chairman
of the NHRC, which also includes a former judge of the Court of
The so-called appointments include various other
mediocre legal professionals who have, (besides their mediocrity),
the other distinctively common factor of close ties in one way or
the other to President Mahinda Rajapaksa.
That aside, all these appointments were made disregarding
the fact that the 17th Amendment hands over the power of selection
of commissioners to the Constitutional Council rather than the President.
The excuse given in the early stages of this unconstitutional process
was that the Council itself was not constituted due to the dilly
dallying on the part of the smaller political parties, (the JVP,
the JHU and the TNA), in nominating the last member to the CC. An
appropriate backdrop to this farce was the President calling upon
the Speaker to resolve the deadlock in the nomination process. Upon
the Speaker replying that he could not, the process of direct presidential
appointments began in earnest.
However, opinion was expressed by many, including
respected senior lawyers, that this constitutional hurdle could
be overcome by preferring that option that would be the most constitutional
as opposed to the President unilaterally making the appointments.
This was that the President should forthwith appoint the five nominated
members to the CC already sent to him some months back and enable
the Council to function with its ex officio members, thus satisfying
the required element of quorum. In response, there was only a deafening
silence from the Presidential Secretariat.
The presidential filling of the vacancies in the
Court of Appeal and the single vacancy in the Supreme Court reported
on Saturday, in truth, consummated this unholy disregard for the
due constitutional process. These appointments again bypassed the
constitutional requirement decreeing approval by the CC upon a recommendation
made to that effect by the President. This requirement obviously
could not be complied with in the absence of the CC. Indeed, they
have raised the most dread fear that litigants could possess; would
decisions by judges appointed in this manner possess constitutional
legitimacy if challenged at any point in the future?
But no Sri Lankan should be surprised at what
is happening in regard to the systematic dismantling of the 17th
Amendment to the Constitution. This was the first real attempt by
Sri Lanka's politicians to bring back a measure of order to a persistently
politicised public service and the police in particular. It was
passed by consensus in the House in 2001 and the debates show an
agreeable understanding to remedy the damage done to the country's
public spirit by years of political interference.
Consequently it is a useful question to see as
to how this general and highly applauded consensus changed so much
for the negative within the short space of three years that the
17th Amendment was properly worked, given the initial delay in the
CC coming into being.
Did any of the bodies set up under the 17th Amendment
trespass on their legitimate spheres of authority or act in such
an aggressively independent way so as to justify such a drastic
crippling of the primary constitutional provision as is evidenced
The answer to this question is resoundingly in
the negative. None of these Commissions behaved in the manner that,
for example, Indian Elections Commission, under the chairmanship
of Chief Elections commissioner T.N. Seshan, conducted itself. Seshan's
Commission challenged the full limit and more of its powers, sometimes
even drawing public criticism that it was going beyond its authority
in pulling up politicians for alleged abuse of power.
In Sri Lanka, there were instances where the PSC,
the NPC and the NHRC stood their ground in response to arbitrary
directions and actions by politicians including Ministers and the
Executive Presidency. One notable instance was the NPC's preventing
of politically inspired transfers of police officers in the pre
elections period. However, there was no magnificent displaying of
their authority beyond a point on the part of one or the other of
these Commissions and certainly not a flinging down of the gauntlet
Where the Constitutional Council itself was concerned,
the one instance of stubbornness displayed by the first Constitutional
Council was its disregarding of the refusal by the Kumaratunga Presidency
to appoint its recommendations for the post of Chairman, Elections
Though the then CC (consisting at that time also
of her own appointee) examined her objection that the recommended
nominee had links to the opposition UNP, this was found to have
no merit. The Presidential objection was disregarded thereafter
and the list of nominees sent back for re-consideration but no appointment
followed. This was the main reason as to why the Elections Commission
was not constituted at all during that period.
We have to conclude therefore that this current
impasse on the part of Sri Lanka's politicians stems from a sheer
rude disregard for constitutional imperatives and an arrogant assertion
of absolute authority. The blame for this has to be shared by the
opposition United National Party notwithstanding the brave though
seemingly isolated attempts of its deputy leader Karu Jayasuriya
to awaken some reaction from his party's monolithically dead flanks.
The question persists; leaving aside the now fashionable
debate on 'failed states', are we yet governed by the law and by
the Constitution? Sadly, the Delphic Oracle itself may hesitate
to provide an answer to that question.