Political unanimity exhibited towards defeating the 17th Amendment
When the Cabinet recently decided to set the 17th Amendment at naught in regard to the proper functioning of key Commissions established under it, its language was deliberately if not quite admirably rational.

Thus, the need for appointment of the members to the Constitutional Council (CC) without delay is acknowledged. The Presidential commitment towards doing so is recorded. However, (and here comes the rub), it is then noted that even after the CC is established, it will take quite sometime (there is later, a reference to a 'considerable period of time') for the Commissions to be appointed.

Due therefore to the practical difficulties that may arise in regard to the functioning of these two Commissions during this interim period, the Cabinet agreed that " the arrangements that prevailed prior to the establishment of these Commissions could be resorted to, purely as an interim measure...." The "responsibilities" of the National Police Commission (NPC) and the Public Service Commission (PSC) were thus allowed to be "assumed" respectively by the Inspector General of Police and by the Secretaries of Ministries/heads of Departments.

And, inelegantly phrased as it may be, this is how the whole bag of tricks is wrapped up for the edification of the unfortunates in this country who still care about constitutional governance. A stray thought is irresistible at this point in time. What, I wonder, will happen when the term of the National Human Rights Commission lapses in a few months as it is mandated to do? Will then 'interim arrangements' be made for human rights violators to observe and monitor the occurrence of rights violations?

In a guest column that I wrote for a regular publication of the New Delhi based Commonwealth Human Rights Initiative last year, I pointed to the resounding splintering of the once unanimous political will that, in the first place, led to the 17th Amendment being certified by Sri Lanka's Speaker on 3rd October 2001.

Significantly, the Elections Commission was never appointed while the NPC was 'cribbed, cabined and confined' at every turn of its functioning. The manner in which the latter fought a losing battle with not only government ministers and politicians (including those of the JVP) but also the IGP himself in attempting to bring back order and discipline to a police force run wild, is now well documented.

The latest in that unruly saga was when the IGP raised strong objections to the NPC deciding to interdict police officers indicted for torture under Act, No 22 of 1994. Happily, reason prevailed in the Supreme Court when some of these interdicted officers who filed a fundamental rights application thereafter was refused leave to proceed. Given its unique constitutional formulation where institutions of law and order in South Asia are concerned, if the NPC had been allowed to function according to its constitutional mandate, it may well have proved to be a shining example for the region. Unfortunately, this was not to be the case.

At the time of penning those reflections, if it had been envisaged that, the NPC itself would have ceased to function and that its powers would have been (however temporarily) "assumed" by none other than its bete noire, the IGP itself, the level of anger would have obviously been far more inflammable. As is the case now. Add to that, the comparable fate that has befallen the PSC.

Lying behind the admirably rational language of the Cabinet decision are a number of unpalatable hometruths that reflect equally badly on two Presidents of this country, the present (who was also the past) Opposition Leader, the Speaker of this Parliament and the leaders of the minority parties. Fact One is that appointments to the second term of the Constitutional Council had been pending since early last year. Due to the nature of dysfunctional leadership across the political divide coupled with an obdurate former President who was, in any case, not alive to the norms of constitutional propriety at the best of times, this process dragged on for a painfully long period.

Fact Two is that since the November 2005 Presidential Elections, the process has deteriorated to almost comical levels. At one point, we are being told that the minority parties have not yet communicated the name of their nominee to the President. At another point, near hysterical calls are made by the Opposition to the President calling upon him to ensure the appointments of the independent Commissions. However, confusion still reigned as to whether the Leader of the Opposition and the Prime Minister had agreed on the five persons nominated on their joint agreement to the Constitutional Council, the constituting of which is a condition precedent to the appointing of the Commissions. In addition, the Presidential appointee to the Council in terms of Article 41A(d) of the 17th Amendment had apparently also not still been made.

Fact Three is perfectly clear. For the greater good of this country, the Opposition should forthwith discharge itself of its constitutional burden in agreeing on the five nominees as should the minority parties where their single nominee is concerned. This should be made clear to the public. Thereafter, a strong case can be made out for compelling the current President to do his part which he has shown no signs of doing up to now.
True, the 17th Amendment contains many defects, not the least of which are the non prescribing of proper time limits for the constitution of its key bodies as well as the non resolution of disputes arising between the recommendatory authority of the CC and the appointing authority of the President.

However, much can be resolved with the present constitutional stipulations if the political will is there. Ironically, what is exhibited now is a callous displaying of political unanimity focussed very much towards defeating and not empowering the functioning of the 17th Amendment. Truly, if this country had intentionally sought to make herself look ridiculous, judged even by the relatively more lax standards of public accountability in the South Asian region, it could not have succeeded with more panache.

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