Suppression Of The 17th Amendment: Cause Of Current Chaos

By Mandana Ismail – Abeywickrema

The introduction of the 18th Amendment to the Constitution in place of the 17th Amendment has legitimised impunity by the government and resulted in the politicising of the public service in the country.
The passing of the 17th Amendment to the Constitution in 2001 was considered a significant step towards establishing a culture of good governance and accountability.
However, the failure of the political leadership in the country to implement the 17th Amendment and the media to keep a close watch on the issue resulted in the piece of legislation being replaced by another.
Constitutional lawyer and former Executive Director, Transparency International Sri Lanka, Chrishantha Weliamuna says that albeit a few own deficiencies, the 17th Amendment should have been implemented by the political leadership to prevent the deterioration of the rule of law in the country.
“There is no political commitment to make the public and the police service independent. Politicians have controlled the public sector since 1972,” he said.
According to Weliamuna, although the politicians agreed to the implementation of the 17th Amendment and the Constitutional Council, the fear of losing control of the public service and other key areas resulted in the political leadership suppressing the implementation of the amendment.
The Constitutional Council was established in order to recommend appropriate persons to the independent commissions specified in the 17th Amendment and help achieve good governance by recognising the principles of equity, transparency, and the elimination of unfairness and invidious discrimination and arbitrariness. The political suppression behind the implementation of the 17th Amendment was clearly witnessed when President Mahinda Rajapaksa failed to appoint the Constitutional Council.
“However, it has not only been President Rajapaksa, but even former President Chandrika Kumaratunge also failed to fully implement the 17th Amendment by not allowing the appointment of the independent elections commission,” Weliamuna said, adding that the erosion of the piece of legislation commenced from thereon. He explained that the 17th Amendment could have made appointments to the public service and police free of political influence. “Parliament scrutiny on high posts is not efficient and scrutiny on appointments was there only with the 17th Amendment,” he said. Weliamuna noted that the post-17th Amendment period has seen the deterioration of the rule of law.
The need for the implementation of the 17th Amendment has been a subject widely spoken of since the government’s move to introduce the 18th Amendment to the Constitution. “The 18th Amendment has legitimised government impunity and has politicised the public service while creating a back door opening to remove the clause preventing the President from contesting for office only for two terms,” Weliamuna said.
Meanwhile, UPFA Parliamentarian Prof. Rajiva Wijesinha in one of his articles on the 17th Amendment to the Constitution has pointed to the need to introduce an amendment to it and stated that one of the anomalies in it is the great distance at which the Constitutional Council, which is supposed to dictate decisions to the elected President, derives its authority.
He has stated that the manner in which it is constituted is another example of unsystematic legislation. The Council consists of 10 members of whom three are ex officio, namely the Speaker, the Prime Minister and the Leader of the Opposition. These last two recommend five others for nomination by the President.
“In making these recommendations, the two major figures in Parliament must consult leaders of political parties and independent groups in Parliament, and three of the five should be nominated to represent ‘minority interests,’ after consultation of Members of Parliament (not leaders of parties in this case) belonging to ‘the respective minority communities,’” Wijesinha has written. Of the remaining two members of the Constitutional Council, one is nominated by the President, which is fairly simple. The other is nominated for appointment by the President ‘upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs (sic).’
Nothing is said about what should happen if there is no agreement with regard to this last – which is what held up appointments to the Constitutional Council last time round – or if the Prime Minister and the Leader of the Opposition fail to agree, or if other parties claim they were not properly consulted. There is no clarity about what is meant by ‘minority communities’ nor which ones are to be privileged through this amendment.
“In short, the 17th Amendment was hastily cobbled together by legislators who simply did not bother about consistency or precedents elsewhere. It is singularly inappropriate for the Executive Presidential system we have, and as was shown by President Kumaratunga, nothing can be done if the President is not inclined to accept the recommendations of the Council,” Wijesinha observes. Former Chief Justice Sarath N. Silva has also commented on the 17th Amendment. Silva last week said, that had the 17th Amendment been implemented appropriately the current situation faced by the country would never have arisen.
“Even the European Union called for the implementation of the 17th Amendment to make available the GSP + to Sri Lanka. The present Chief Justice too says it would have been better if the 17th Amendment had been implemented. However, he paved the way to bring in the 18th Amendment,” Silva said.

Salient Points Of The 17th Amendment
The 17th Amendment was presented to Parliament in September 2001 and enacted in October 2001.
The Constitutional Council however was constituted only in March 2002.
The Council consisted of the Prime Minister, Speaker, Leader of the Opposition, a person appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition and one person nominated upon agreement by the majority of the members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong and appointed by the President.
One of the prime objectives in creating the Constitutional Council was to free the Commissions created by the 17th Amendment from political interference.
Appointments to Public Service Commission (PSC), the Judicial Service Commission (JSC), National Police Commission (NPC), Commission to Investigate Allegations of Bribery and Corruption, Human Rights Commission (HRC) were made with the recommendation of the Constitutional Council.
An independent Elections Commission was also to be appointed by the Constitutional Council.
A significant feature of the 17th Amendment is the creation of the Administrative Appeals Tribunal with powers to hear appeals from decisions of the PSC and the Police Commission.