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.
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.
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
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?
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.
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.
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.
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
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
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.
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.
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.