Columns - FOCUS On Rights

Flamboyant untruths regarding the 17th Amendment

By Kishali Pinto Jayawardene

This week's explanation by Minister DEW Gunesekera, (according to an uncontradicted lead news item in the Daily Mirror of September 15, 2008), as to why the Constitutional Council (CC) cannot be immediately reactivated despite all the nominations being sent to the President, is astounding for its flamboyantly incorrect summation of the current law as well as for the disingenuous manner in which this is used to justify the continued delay in putting the CC into place.

The Ministry of Constitutional Affairs has never been particularly known for its profound intellect or indeed, for any degree of integrity in dealing with matters of constitutional reform despite the many purported consultants on their payroll. Witness therefore, its past attempts to hold conferences on reform of the current Constitution's chapter on fundamental rights while blithely colluding in the unscrupulous undermining of existing constitutional provisions stipulating good constitutional governance.

The reason as to why the CC cannot be established.

Even conceding this to be the case, Minister Gunesekera's most recent reasoning as to why the CC cannot be immediately established, far exceeds the line. Let me systematically dissect his explanation in order to examine its fundamental defects. To be scrupulously fair in dealing with this question, I will reproduce what was said to the newspaper. The Constitutional Affairs Minister's explanation was, (following President Mahinda Rajapaksa's reasoning), that the members to the Constitutional Council could not be immediately appointed by the President until the 'flaws' in the 17th Amendment are corrected.

Elaborating further, he had pointed out that the main grievance in this regard was that (and I reproduce verbatim) 'the independent commissions are not responsible to the Executive, Judiciary or the Legislature and their rulings cannot be challenged in any of these forums….the delegation representing all the political parties had wanted either a separate parliamentary committee to review recommendations of the independent Commissions or give more teeth to the existing Constitutional Council to give a final ruling over decisions taken by independent commissions.'

Wholly incorrect reasoning regarding the law

This statement is wholly incorrect in regard to the law. Surely Minister Gunesekera cannot be so unaware of the fact that the 17th Amendment, as it presently stands, does most definitely permit judicial scrutiny of decisions of the independent Commissions on the public service and the police, through the lodging of fundamental rights petitions in the Supreme Court?

The Pubic Service Commission (PSC) had come in for particular criticism in this respect. Thus, Minister Gunesekera had observed that 'there are over 6000 public petitions before the Public Petitions Committee, out of which 75% were from public servants on grievances connected with disciplinary actions, transfers, promotions etc…….the Commissions are all-powerful and are not responsible to the Executive, Legislature and Judiciary." But surely Minister Gunesekera cannot be unaware of the fact that Article 61A of the Constitution, brought in by the 17th Amendment, explicitly permits invocation of the Article 126 jurisdiction (fundamental rights) of the Supreme Court against any decision of the PSC?

Judicial review asserted not only in theory

Nor is this power manifest only in theory. It was barely three weeks back that the Court, in fact, ruled that a decision of the PSC taken in regard to transfers of medical administrative personnel was arbitrary. Meanwhile the 17th Amendment itself also provides for the rulings of the PSC to be taken before the Administrative Appeals Tribunal which indeed, had been sitting in this regard for well over five years. Then again, decisions of the National Police Commission have been equally successfully challenged in the Supreme Court in several instances, again as specifically permitted by Article 15CC of the Constitution.
In this context therefore, it is quite inexplicable as to how the Minister of Constitutional Affairs could assert that the decisions of the independent Commissions are 'all-powerful' and are not subject to any manner of review, thus necessitating 'flaws' in the 17th Amendment which needs to be set at rights. This is specious and indefensible reasoning.

No political will the real reason

In actual fact, as we are all aware, the political executive just does not want to implement the CC. The problem now is not that the decisions of the Commissions are all powerful but the fact that the members to these Commissions have been appointed unconstitutionally by President Rajapaksa resulting in their being deprived of public legitimacy.

This is the problem that needs to be immediately corrected by the reactivation of the CC and the reconstitution of these Commissions through their members being properly nominated by the CC.
Indeed, the responsibility that Minister Gunesekera assumes in this respect as Chair of the Parliamentary Select Committee is tremendous. He simply cannot shrug this responsibility off by reverting to excuses that are plainly contradicted by the law. Whereas earlier, we had at least a fig leaf of the remaining member to the CC not being nominated by the political parties belonging to the minority groups in Parliament, that reason is no longer valid.

The responsibility of the Opposition

Further, the responsibility of the United National Party (UNP) is foremost in this regard. If the Leader of the Opposition is of the opinion that, by allowing this issue to be dragged, it will advantageously dent the Government's image regarding good governance, he is doing his own party a great disservice. Indeed, the damage that is done to the UNP in not functioning as a responsible opposition is as great as whatever negativity imputed to the Government given also that the current Presidency, buoyed as it is by the war drive, does not make any pretences of being unconcerned about good governance or rather, the lack of it.

Praying to the deities for help

In the final result, are we to assume that the Chairman of the Parliamentary Select Committee or the members of political parties sitting to deliberate the so called 'flaws' in the 17th Amendment, do not know the law? If the 17th Amendment was said to lack some finesse due to the hurry in which it was passed, it appears that this long delayed and abominably painful 'finetuning' process will result in even greater confusion. In the process, it may be apt indeed to pray for the deities to save us from our politicians.

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