It is very apparent that the Office of the Presidency cannot take cover any longer under the thin excuse of the absence of a single nomination of the smaller parties in Parliament to postpone making the long pending appointments to the Constitutional Council under the 17th Amendment to the Constitution.
On all accounts, the names of all the nominees required to be sent by parliamentary representatives have this week, been forwarded to President Rajapaksa and, (notwithstanding the typically obstructive tactics resorted to by the Jathika Hela Urumaya), the President will now be required to make the appointments as mandated by law, in the context of the Supreme Court's pronouncements on this matter. The consequences of a presidential refusal to do so may provoke a constitutional crisis, (quite justifiably in this instance), and blatantly expose the President's refusal to submit to the Rule of Law.
Further, no longer will the ingenious cover of a Parliamentary Select Committee's deliberations on the overall amendment of the 17th Amendment suffice to postpone the appointments. It is evident that this Select Committee (which, on many occasions, could not even meet due to lack of quorum) was not expected to yield concrete results at any point of time.
The need to adhere to
responsible government
At the risk of being slated for talking of irrelevancies at a time when no one cares for constitutional governance, it may yet be opportune to point to the fact that the doctrine of responsible government stipulates a working of the Constitution that has its origins in the basic honouring of constitutional principles and conventions. Undoubtedly, Constitutions, when written, are documents limited by the times during which they were reduced to writing. As living documents, they cannot be circumscribed by those limitations but are supplemented by particular practices which are, as famously pointed out once by Sir Ivor Jennings; "the flesh which clothe the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas….."
These are not mere exhortations but have tremendous political validity. A case in point was in 1975 when Australia underwent what has been referred to as its greatest constitutional crisis, following the dismissal of the Whitlam Government by the Governor-General using his Reserve Powers under Section 64 of the Constitution. Critiqued as a grave subversion of the democratic parliamentary traditions in Australia, this was one notable instance when constitutional analysts warned against 'literal' readings of constitutional documents, pointing out that the doctrine of "responsible government" is an essential part of any country's constitution.
Dispensing with convenient excuses for non-adherence
It necessarily follows therefore that constitutional provisions, (which vests powers of appointment for example, in the Head of State), must be exercised responsibly and in accordance with the spirit of that constitutional provision. Thus, even though we may have the President throwing his hands up in the air and exclaiming that he has no option but to unilaterally appoint members to the constitutional commissions and to key public posts because 'Parliament cannot agree on the nominations' we know full well that this is not actually the case. Every effort to come to a consensus on this matter was stymied particularly by the JHU in a manner that was perhaps in keeping with its role as a key political ally of the Presidency.
We had a situation where as honourable a nominee as former Auditor General, Mr SG Mayadunne was compelled to withdraw his consent to his nomination by the smaller parties. So lets' have done with this farce and confess that the government had absolutely no intention of implementing the 17th Amendment for reasons that have little to do with the war effort. It is however pertinent to warn that though the war drums may serve to drown such imperatives currently, the consequences of bypassing the Constitution will come home to roost as it were. This was what befell even more powerful Presidents in the past who indeed, thought themselves invincible.
What does the President have to fear from the 17th Amendment?
And we may well ask the question, 'Why is the President so petrified by the 17th Amendment? What exactly does he have to fear from its proper implementation?" The answer may very well be found not in the working of the Human Rights Commission, which even with the best of intentions and led at a point by people who were committed to human rights protections, could not do very much due to the lack of effective powers. Rather, the answer to the riddle is found curiously enough in the National Police Commission (NPC), which during the chairmanship of Mr Ranjith Abeysuriya, P.C. in its first term, did indeed manage to ruffle a considerable amount of political feathers by its independent and bold handling of the discipline of the police force.
From the time that the NPC decided in mid 2004 that it would recall its delegated powers and assume substantive disciplinary control as mandated by the 17th Amendment over the police officers of all ranks, excepting the IGP, we saw inflammatory statements by frontline ministers that the 'independence of the NPC' was not needed and that the Inspector General of Police (IGP) should be involved in the decision-making processes of the NPC. Public hostility was evidenced between the IGP and the NPC with the former stating that the creation of the NPC had imposed an unwarranted fetter on his powers. Despite this hostility, the NPC intervened in preventing politically motivated transfers of police officers prior to elections and interdicted police officers found culpable in rights violations as well as those indicted of torture under the Torture Act No 22 of 1994.
Yet, all these decisions came with predictable consequences. It was therefore not surprising that we saw not long after, the clipping of the wings of the 17th Amendment and the taking over of powers of appointments of members to these commissions, including very particularly the NPC, by President Rajapaksa.
A litmus test for democracy
It is not to be expected that political power in this regard will be abandoned easily. However, the fate of the 17th Amendment at this point of time will be a litmus test that will measure the extent to which we would want to see change in our governance processes, not only on the part of the (almost moribund) political opposition but on the part of Sri Lankan society in general. This is again not to say that the 17th Amendment will be a miracle cure for all our ills or that the CC will arrive at right decisions each and every time.
However, we do have at least a basic measure of faith that the CC will govern itself in a manner different to the current dictates of political expediency.
Particularly in a context where crucial appointments will soon need to be made, including to the office of Sri Lanka's Chief Justice, the need for the CC to re-commence functioning has never been greater. We expect therefore that the status quo will indeed change and that the President, even if reluctantly, will be compelled to adhere to the basic demands of the Constitution in this regard. |
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