Focus on Rights

Shall we (honestly) abolish the 17th Amendment once and for all?
This week's news report that acting appointments have been made to the Judicial Service Commission (JSC) by President Mahinda Rajapaksa in the wake of the two resignations some weeks back by two of its members, Justices Shiranee Bandaranayake and TB Weerasuriya makes provocative reading. To all intents and purposes, President Rajapaksa has apparently utilised Article 41C(2) of the 17th Amendment for this purpose.

This constitutional article, in actual fact, applies in the converse to such acting appointments by stipulating that if, a person is appointed in an acting capacity for a period exceeding fourteen days to a number of stipulated offices, (including the JSC), then such appointment needs to be with the approval of the Constitutional Council (CC) upon a recommendation made to the CC by the President. Obviously, this was meant as a safeguard to ensure that acting appointments cannot be converted to substantive appointments without the external approval condition by the CC being adhered to.

In the instant case, the question is pertinent; will the office of the President engage in a process of continuously renewing these acting appointments, (which must necessarily be confined, in each instance, to a period of fourteen days), until the CC is constituted and in turn, brings a new JSC into being?

Would such processes be accord well with the legislative intent of Article 41C(2) of the 17th Amendment even if one is inclined to brush aside that rather nebulous concept of the 'spirit of the Constitution?" These are disturbing issues that compulsively come to the forefront given the tremendously important nature of the questions of constitutional propriety that are involved.

But, on the other hand, is it a cruel joke to dwell on principles of constitutional propriety in a country where amendments are made to the 'supreme law of the land' (as the Constitution is so often nauseatingly referred to) and then disregarded whenever ruling politicians think fit and the sitting opposition has no moral courage to withstand such subversive processes?

It is now quite evident that the Rajapakse Presidency has no intention of reviving the 17th Amendment, enthusiastically aided and abetted in this process as it is by one of its "near but yet so (tantalisingly) far" allies, the Janatha Vimukthi Peramuna (JVP).

The JVP continues to insist that they too, belong to one of the groupings in Parliament that are not formally allied to the government or to the party of the leader of the opposition. It is these parties that have the burden of nominating, by consensus, the last remaining member to the CC.
As of now, the high moral ground taken by it in 2001, in not only pushing the 17th Amendment through but also virtually acting as a broker in bringing parties together to reach consensus on the appointment of members to that first CC, is now all but lost by this insistence coupled as it is by its disinclination to reach any consensus on the nomination with other parties belonging to this grouping.

This is quite irrespective of the recent self-exculpatory statements made by some of its political leaders that they are working 'quietly behind the scenes' to implement the 17th Amendment. Looked at as charitably as possible, such vague declarations remain tremendously suspect.

The position of the Jathika Hela Urumaya (JHU) is less discernible but that party also appears to be spurred by no keen desire to implement the provisions of this constitutional amendment.

It is now being publicly held out that the problem with the CC is now a tussle between the JVP, the JHU and the TNA as to who will have the predominant say in nominating this last member to the CC. By itself, this presents a problem of mind-boggling magnitude which has all the elements of preventing this unfortunate Council ever coming into being. After all, can one ever think of these three parties, (posited as they are at all the diverse extremes of the political spectrum), coming to any degree of consensus on any matter unless impelled by a genuine commitment to their constitutional obligations?

This question is, of course, rhetorical. The issue of "genuine commitment" to the Constitution is most distinctly a non-starter where political parties in this country are concerned. And this includes the main opposition, the United National Party as well. What other indictment is possible, I ask, in a context where its leader airily ignored, for more than eight months, his duty to not only make his individual nominee to the CC known but also to agree with the Prime Minister and the minority parties on the rest of the five nominees that had to be made jointly by him and the Prime Minister?
And now, to return to examining President Mahinda Rajapakse's quite specific presidential obligations in this regard.

Some weeks back, his secretary promised to the media that the President would make the appointments to the CC immediately upon the names being communicated to him. As far as I remember, the words used were that the act of appointment would only be a 'matter of minutes' and no more. However, it is now several million minutes since the five belated nominations of the Leader of the Opposition and the Prime Minister were communicated to the President but no appointment have been forthcoming. It may be a useful defence to counter that, the remaining nomination has also to be made in order for the appointments to be effected all in one 'fell swoop' as it were. However, the language of that constitutional article pertaining to the appointments need not be interpreted in such a stern manner.

Article 41A (5) mandates that the President shall, upon receipt of a written communication of the five joint nominations of the Prime Minister and the Leader of the Opposition or of the single nomination of the smaller parties, forthwith make the respective appointments. The use of the disjunctive in this context reasonably enables a liberal interpretation of that provision which could have been resorted to by President Rajapakse to at least, make the appointments of whatever the names sent to him. This would have gone a long way towards establishing his good faith in acknowledging the constitutional commitment of his office to the 17th Amendment.
It is relevant also that Article 41E(3) of the 17th Amendment stipulates that the quorum for the CC shall be six members. If these initial appointments are made, the CC, together with the Speaker (as its Chairman) as well as the Leader of the Opposition and the Prime Minister (by virtue of office) could come into being. This would, in turn, undoubtedly act as a further incentive to compel the remaining nominee to be agreed upon by the smaller parties.

But, why are all these questions being discussed so earnestly when it is quite obvious that there is no political will to rejuvenate the 17th Amendment in any form whatsoever. We now call upon the Rajapakse Presidency to complete the remaining segment of this destructive cycle and abolish the 17th Amendment altogether. That, at least, may be more honest than the present grand hypocritical scheme. Assuredly then, we would know the political devil (metaphorically) for what it really is.

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