by I. P. C. Mendis
On March 01 2006, a writer referred to the serious
constitutional crisis facing the country due to the
non-operation of the 17th Amendment to the Constitution and the
woeful lack of responsibility, commitment and initiative on the
part of those legislators who seek to represent the people in
the sacred task of democratic governance on the basis enunciated
by the great Abraham Lincoln.
The country is now governed by the people, for the people and
on behalf of the people. The country is now aware, or at least
should be aware, that the Constitutional Council (CC) and the
independent commissions for Police and the Public Service
Commission are dysfunctional while the Judicial Service
Commission by reason of the resignation of two of its three
members, stands without a quorum. Nothing can be done to revive
these Commissions unless the CC itself is given oxygen in the
first instance. The parent body (CC) is effectively paralysed by
a piece of legislation, the terminology, interpretation and
provisions of which are so involuted that one cannot resist the
evil thought that the whole 17th Amendment has had its own
agenda, despite the initial enthusiasm to cater to the demand of
the people for a just and equitable society.
Such an evil thought is supported by the existing universal
political indifference. Yet, all are aware of this Catch 22
situation! The stalemate has enough power to generate a
spontaneous reaction by the people if those who are ever ready
to organise demonstrations at the drop of a hat, resort to
strikes and go-slows, sick notes, so-called fasts unto death and
threats at occasional immolation, were half as ready to take
this cause of the non-operation of the 17th Amendment.
Appointments, promotions, transfers, discipline
administrative and appellate functions are all at stake and
there are extra-constitutional steps being contemplated in the
absence of an alternative, to fill the void created by the
inoperative institutions, all of which affect the public
services and trade unions. The people themselves are affected
through the immobilisation of the National Police Commission,
the PSC and the JSC.
There are none at Lipton Circus, Fort Railway Station or on
the Galle Road from Dondra to Colombo to espouse the cause.
The diffident opposition and independent parties need to act
fast with the government to breathe life into the good
intentions and spirit of the Amendment. The 17th Amendment is as
at present, a 'dead letter'. The CC, in any case, even if
revived cannot function in the event of a vacancy occurring,
which will take a month of Sundays to fill.
The whole Amendment is basically flawed. The government is
helpless with the unworkable provisions of this 'pearl of great
price' which is tottering in its keens after a short life-span
of less than 05 years. The cracks in its literary architecture
are manifest, inter alia, in total failure to appoint an
Elections Commission as envisaged in Article 103(1).
These submissions by me are designed to signal a Red Alert to
the country and its people of the dangers that lie ahead in
permitting this matter to drift exposing the democratic system
to erosion. There can be no extra constitutional steps without a
backlash in Courts and elsewhere, however much it is argued as
being necessary to get over the stalemate. The suspension of any
of the provisions of the Constitution is permissible only where
Public Security is involved. The situations are dealt with in
articles 154 J to Article 154 N of the Constitution. It is,
therefore, not in the public interest or in the interests of the
government to let the issue drift into limbo and to display
indifference to the cause. Chaos is staring us in the face!
Quite apart from the predicament the Elections Commissioner,
Dayananda Dissanayake, finds himself in, the present situation
is heavily laden with various possibilities that would be
inimical to the interests of the Nation and good governance.
Article 26 (2) of the Amendment provides as follows:
"The person holding office as the Commissioner of Elections
on the day immediately preceding the date of the commencement of
the Act, shall continue to exercise and perform the powers and
functions of the office of Commissioner of Elections as were
vested in him immediately prior to the commencement of this Act,
and of the Elections Commission, until an Election Commission is
constituted in terms of Article 103, and shall, from and after
the date on which the Election Commission is so constituted,
cease to hold office as the Commissioner of Elections."
The provision is totally subjective vis-a-vis the
Elections Commissioner, Dayananda Dissanayake, who has
absolutely no option but to continue the work he had been
performing prior to the commencement of the Amendment. It was in
terms of this provision that the Supreme Court ruled that it was
unable to help him to retire. It would indeed be logical to
conclude that this rigid provision leaves no quarter for anyone
else to act in the post of Elections Commissioner nor be
appointed permanently until the establishment of the Elections
Commission. If not, he would have been permitted to retire.
A crucial issue arises as to what would happen if the person
holding the post of Elections Commissioner is so incapacitated
that he cannot perform his functions anymore or God forbid!
(with all my prayers for good health and long life of the
present incumbent I mention this only for argument sake only!)
The result: no elections, no referendum, or nothing in the
absence of an Elections Commission. It is a far cry from the
1994 situation when Mr. Dissanayake was hospitalised and Mr.
Dassanayake from the SAAS was entrusted with the task of
conducting the general elections. Or more specifically
considering the impending local government elections - are we
not "playing roulette" depending too much on Providence or the
What if there is no one to conduct the elections or certify
the results? These are questions which need to be addressed
notwithstanding human decency sometimes compelling one to desist
from openly focusing them lest it hurts personally.
I crave the indulgence of Mr. Dissanayake to bear with me in
the name of his own plea made to President Rajapakse. (In fact,
the Court of Appeal had reportedly dismissed recently a plaint
against rejection of nominations on the ground that the appeal
should have been against the Elections Commission
Such is the magnitude of the confusion. In the event of such
a situation, the constitutional crisis will be complete and it
will be fertile ground for subversive forces, coup karayas,
and ambitious individuals backed by foreign vested interests and
some NGOs to fish in troubled waters.
Revocation of the 17th Amendment
The 17th Amendment is unworkable - let's face it. In the
circumstances, until such time as a revision of the entire
provisions and procedures laid down in the Amendment is
undertaken, there appears to be no viable alternative to
restoring the status quo ante by the revocation of the
17th Amendment forthwith by harnessing a two-third majority.
No right-thinking person who has the future of the country at
heart could possibly oppose the move. It is no doubt an
emergency move. It will instil self-respect to the government
and the country and more importantly preserve democracy.
The government need not wait till the county is in a dilemma
giving more ammunition and support to inimical forces which are
waiting in the wings to cash in on such opportunities to de-stabilise
and to bring the government into disrepute internationally and
locally. Indeed, a passport on a platter for Anarchy!
Let the coolness of the "DEW" that drips on the heads in the
ministry of Constitutional Affairs not lull them into a false
sense of security and complacency but jerk them into the reality
of an impending inferno.