17th and 18th Amendments Four decades of constitutional folly and failure – 4
By C. A. Chandraprema
(Courtesy of The Island)
The idea that key appointments in the state should not be made by elected people’s representatives but by a panel of unelected, wise, politically uninvolved men and women came to the fore with the 17th Amendment which was passed into law in October 2001. The 17th Amendment was all about the Constitutional Council and independent commissions. At that time, a great deal of power was concentrated in the hands of the President who made most, if not all the appointments to the important positions of the state that came under the Constitutional Council. So the introduction of the 17th Amendment was couched in terms of curbing the powers of the all-powerful executive presidency. For over two decades, there had been strident calls for its complete abolition. What came in the form of the 17th Amendment in 2001 was an attempt to ‘defang’ the executive presidency since abolishing it completely was proving to be difficult.
The Seventeenth Amendment to the Constitution envisaged the creation of a ten member Constitutional Council made up of ten persons – the Prime Minister, the Speaker, the Leader of the Opposition, one person appointed by the President, five persons nominated by both the Prime Minister and the Leader of the Opposition and one person nominated by the smaller political parties represented in Parliament other than the political parties to which the Prime Minister and the Leader of the Opposition belongs. The 17th A stipulated that when the Prime Minister and the Leader of the Opposition named the five persons they were supposed to nominate jointly, they should consult the leaders or the political parties and independent groups represented in Parliament. The law also laid down the rule that three of those five persons shall be appointed to represent minority interests in consultation with the Members of Parliament belong to the respective minority communities.
The Speaker was to be the Chairman of the Constitutional Council and the seven outsiders other than the three Parliamentarians who were on it ex officio, were to be ‘persons of eminence and integrity who have distinguished themselves in public life’ and who are not members of any political party. These non-political distinguished personalities on the CC were to hold office for a period of three years and were ineligible for re-appointment which meant that once every three years, there would be a search for distinguished personalities to fill the slots falling vacant. A member of the CC could be removed from office only if the Prime Minister and the Leader of the Opposition both formed an opinion that such member is physically or mentally incapacitated and is unable to function further in office.
The Constitutional Council was to recommend to the President persons for appointment as Chairmen or members of the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission and the Delimitation Commission. In such cases, it was the Constitutional Council that was to take the initiative by recommending persons suitable to be members of the independent commissions. In the case of important offices of the state such as the Judges of the Supreme Court and Court of Appeal, members of the Judicial Service Commission other than the Chairman, the Attorney-General, the Auditor-General, the Inspector-General of Police, the Ombudsman and the Secretary-General of Parliament the roles were reversed with the President making the recommendation of the candidate to the Constitutional Council and the latter indicating its approval or disapproval.
The quorum for any meeting of the CC was to be six members and for a decision to be valid, it had to be supported by at least five members. The Constitutional Council’s decisions were final and the only recourse that a party aggrieved by its decision had was to file a fundamental rights case in the Supreme Court. The independent Commissions established by the 17th Amendment were designed to take power over state sector personnel away from the political authorities. The appointment, promotion, transfer, disciplinary control and dismissal of all Heads of Departments was vested in the Cabinet. However, the Public Service Commission was to have power over the appointment, promotion, transfer, disciplinary control and dismissal of all public officers except the heads of departments. Likewise, the National Police Commission had complete authority over the appointment, promotion, transfer, disciplinary control and dismissal of all police officers other than the Inspector-General of Police.
17th A stood on its head
What was most noteworthy about the 17th Amendment was how quickly and completely its stated intention was stood on its head by its own provisions. The stated intentions of the 17th Amendment were in practice, implemented in reverse. The way the 17th Amendment was drafted was at the root of this fiasco. When it was said that five members had to be nominated by both the Prime Minister and the Leader of the Opposition and that in making these nominations, they had to consult the leaders of the political parties represented in Parliament and that three of these five persons should belong to minority communities, there was only one way in which things could go. The Muslim political parties nominated one member, the Up-country Tamil parties and Tamils of the North and East getting one member each, and the Prime Minister and Leader of the Opposition also getting one member each. When it came to the member nominated by the smaller political parties represented in Parliament, the JVP and the JHU played musical chairs for that seat with the TNA also staking a claim despite the fact that they already had a nominee to represent the Tamils of the North and East.
Ultimately it so turned out that the “persons of eminence and integrity who have distinguished themselves in public life and who are not members of any political party” who were to sit on the Constitutional Council were all nominees of various political parties. If those political parties had simply nominated one of their MPs to sit on the Constitutional Council, the effect achieved would have been the same. If the idea was to curb the power of the government of the day or the President so that they would not be able appoint just about anybody they liked to high state positions, then getting the opposition MPs in Parliament also involved in the process would have brought about the desired broad basing.
But in addition to the view that the power of the executive in making appointments to important positions in the state should be curbed, there was also the snooty view that the elected people’s representatives whether of the government or the opposition could not be trusted to make the proper decision and that therefore, this had to be done by “persons of eminence and integrity who have distinguished themselves in public life and who are not members of any political party”.
Yet according to the provisions of the 17th Amendment itself, these ‘distinguished and honourable’ men and women had to be nominated to the CC by the reviled politicians! The President would nominate one, the Tamil politicians would nominate their representatives, the Muslim politicians theirs, the PM would have one, the leader of the opposition will have one and the smaller political parties will fight among themselves to nominate the last member of the CC. Ultimately, naming a nominee to the Constitutional Council took place on the same basis as the respective political parties deciding on their national list MPs! However much this was pointed out to the proponents of the 17th Amendment, they like the naïve King in Hans Christian Andersen’s fairy story, refused to acknowledge that the 17th Amendment was nothing but self-deception.
The reviled 18th Amendment
Ironically, the much reviled Eighteenth Amendment to the Constitution corrected the absurdity of the 17th Amendment by replacing the Constitutional Council with a Parliamentary Council comprising of the Prime Minister, the Speaker, the Leader of the Opposition, a Member of Parliament nominated by the Prime Minister, and another MP nominated by the Leader of the Opposition. The President would make appointments to the important offices of the state and the independent commissions mentioned earlier and in doing so, the President was required to seek the observations of the Parliamentary Council. The observations of the Parliamentary Council, regarding the persons proposed by him for such appointments, would have to be conveyed to him by the Speaker within one week of the proposal.
What was envisaged was a consultative process whereby the President would consult the Parliamentary opposition as well in making important appointments. To make things even more inclusive, the 18th A stipulated that if the Leader of any recognized political party represented in Parliament desires to propose the name of any person for appointment as Chairman or member of an independent Commission, he may within the period of one week allocated to the Parliamentary Council to make its observations, forward to the Speaker the name of any person in relation thereto. The President may take such names into consideration when making such appointments. This was a more direct and less hypocritical way of getting nominations from the party leaders themselves instead of obtaining those views through a political stooge of those party leaders sitting on the Constitutional Council as under the 17th Amendment.
Even though the Parliamentary Council system established under the 18th Amendment was more rational and less hypocritical than the arrangement under the 17th Amendment, the 18th A came under fire for other reasons such as repealing Article 31(2) of the Constitution which stated that ‘No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People’ thus effectively allowing a President to serve as president on more than two occasions. It was not so much the Parliamentary Council system introduced by the 18th A that became the focus of criticism, but the lifting of this limit on the number of terms that a President could hold office.
The Parliamentary Council system was introduced by the 18th A in the context where the Constitutional Council introduced by the 17th Amendment had been in a state of abeyance for years because the smaller political parties in parliament, the TNA, JVP and the JHU were not able to decide among themselves whose turn it was to send a nominee to sit on the constitutional council! Hence, the Parliamentary Council introduced by the 18th Amendment did provide something where there was nothing earlier. However the 18th Amendment never won acceptance because of the provision removing the two term bar on the President. 168 Viewers