What ails the psc report on the 17th Amendment?

By Kishali Pinto Jayawardena

It is indisputably this country's folly that even when positive exercises emerge with great difficulty out of the morass of negativity that constitutes governance in Sri Lanka today, they are fated to lapse into failure with scarcely a whimper apart from a few columns of newspaper space, a stream of letters to the editor or some minutes of broadcasting time. So in a country where the elites are (largely) unconcerned, the ordinary people suffer in resentful silence and the dysfunction of the opposition closely equals that of the government, there can only be a pitiable paralysis of governance.

This sound logic applies to many recent positive efforts to enforce public accountability including the two recent COPE Reports that have now been referred to the tender mercies of the Bribery and Corruption Commission. I will take another example that excellently illustrate the same logic, that is the 17th Amendment to the Constitution which pointed the way to restoration of good governance but was tossed overboard in 2006 by the Rajapaksa Presidency, acting on the purported basis that Parliament was at fault in not nominating the tenth member to the Constitutional Council (CC).

This is not to say that his successor was more diligent in implementing this constitutional amendment as testified to, by her refusal to appoint the nominated Chairman of the Elections Commission. Or to say that the Opposition Leader was more enthusiastic in resolving the deadlock of the CC as testified to, initially by his own delay in nominating the five members (jointly to be nominated by him and the Prime Minister) as well as by the marked reluctance of the UNP to strongly campaign on the issue. It may therefore be safely said that this constitutional amendment became the classic legislative orphan, abandoned too by its own godparent, the Janatha Vimukthi Peramuna who by this time, had realized the dangers in their once enthusiastic espousal of apolitical governance.

This is all, of course, familiar ground. What is relatively new information is that the Interim Report of the Parliamentary Select Committee to look into the Operation of the 17th Amendment to the Constitution, finalized as far back as 23rd July 2007, is still devoid of parliamentary consensus due to disputes based on party politics. So we have the same persistently expedient political logic obstructing the implementation of the 17th Amendment even at this late point of time.

It must be said meanwhile that the contents of the Interim Report of this Select Committee come as a pleasant surprise. There is no doubt that the so-called deadlock in the nomination of the last member of the CC should ideally have been resolved far more quickly than this long drawn out process of one and a half years, causing irreparable damage to the constitutional commissions created in terms of the 17th Amendment. However, the Select Committee has made some recommendations that are positive in substance. For example, its recommendation, (to obviate further learned jurisprudential arguments on the language of the relevant clause), that the CC should be specifically enabled to function with six members instead of all ten, deserves commendation.

So too is the recommendation that the English version of Article 41 A(5) of the 17th Amendment be followed and that the Sinhala text be amended accordingly, in order that it need not be compulsory for the appointment of all the six nominated members together. The President is consequently stipulated to make the appointments within fourteen days of the receipt of the relevant communication of nomination instead of the current indefinite time frame. The Speaker is vested with the specific duty to ensure that the needed nominations are, in fact, made.

The Committee's view that the power to make the remaining nomination vested in political parties 'not belonging to the party of the Prime Minister or the Leader of the Opposition' should be decided, not on whether that party was part of the government or opposition at the time of election but rather on the question as to whether they function independently in Parliament, is more contested.

Yet, this is a small price to pay for the return of the CC even with six members. Interestingly if not amusingly, (amusing as it is on many fronts), the Committee had dismissed the request of former CC members appearing before it, that they may be eligible for re-appointment. The dismissal was on the basis that this may compromise the independence of the appointed members. It is also positive that the Committee has suggested that successive acting appointments should also receive the CC approval.

The Committee reports also amends the 17th Amendment so that the CC is called upon to make not one nomination to the post of Chairman of the constitutional commissions but three, out of which the President 'may' appoint anyone of the persons so nominated. Appointments to the Commissions "shall" be made within two weeks of the receipt of the nominations.

The Committee Report has undoubtedly, some deficiencies as for example, its limited focus only on the procedural problems affecting the 17th Amendment. Its insistence that decisions of the CC are subject only to the fundamental rights jurisdiction of the Supreme Court is also superfluous given that Article 41H already specifies this and also given recent precedent on this very point. However, its contents which ought to be brought into the public sphere more widely embody, in the main, good recommendations.

In any other system with a semblance of constitutional governance, many of these recommendations to 'clean up' the language in the 17th Amendment in order to enable its effective functioning, could have been naturally construed by and implied in the existing language of the 17th Amendment. This would not have required tremendous feats of jurisprudential interpretation, if the spirit and purpose of the 17th Amendment had been given effect to. However, this did not happen.

At least now, we have a relatively good report that should be implemented immediately. We are entitled now to question as to why there is delay in implementation from all parties whose representatives sat on the Committee, including the UNP. The public must be informed precisely as to the manner in which the delay is being resolved. The alternative will only buttress the perception that the entire Select Committee process was a farcical exercise.