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‘There are a lot of shortcomings in the
17th amendment’ –Srinath Perera
The 17th amendment to the constitution figures prominently in the ongoing presidential election campaign with the joint opposition candidate promising to implement the 17th amendment if he is elected to power. Many people have been led to believe that the 17th amendment is a panacea for all the ills that beset our system of governance. However, there are less-starry eyed analysts who hold that the 17th amendment is a flawed piece of legislation that should never be implemented and if it is implemented, by some misguided government, the country would be rendered ungovernable. In this interview, C.A.Chandraprema speaks to former Additional Solicitor-General and current UNP Western provincial council member and president's counsel Srinath Perera about the workability of the 17th amendment.
Q. The 17th amendment was brought in mainly to curb the powers of the presidency. If the executive presidency is going to be abolished, what would be the point in implementing the 17th amendment?
A. The 17th amendment was brought in not only to curb the powers of the president, but to de-politicise the whole system. There has been progressive politicization in important government institutions after independence. In my view, the 17th amendment was one of the most progressive pieces of legislation brought during the past 15 to 20 years, with a view to depoliticizing the entire system. Had the independent commissions been in place at the time of going in for this presidential election, that would have had a tremendous impact on the final outcome. We do say that we will be abolishing the executive presidency. But until that is done, the 17th amendment has to be given effect to. The 17th amendment may become irrelevant or otherwise, only depending on what constitutional changes are brought in finally. If the executive presidency is abolished and that power is shifted to the hands of the executive prime minister, there will be something positive in that, as then we will have an executive PM responsible to parliament. But if this results in a situation where the prime minister is allowed to politicize the system, we may have to retain the 17th amendment with consequential changes that will allow us to put certain checks and balances into place. So we have to retain the 17th amendment until we see what the changes to the constitution finally are.
Q. How workable is the 17th amendment? The constitutional council is the centerpiece of the 17th amendment. This has to be reappointed once every three years. Of this 10-member council, three individuals, the speaker of parliament, the prime minister, and the opposition leader are appointed to the council by virtue of their office. One member is appointed by the president at his sole discretion. Those appointments are not problematic. However, five members have to be appointed only on the concurrence of both the prime minister and the opposition leader. One other member has to be appointed by the smaller political parties in parliament - those outside the parties that have appointed the prime minister and the opposition leader. So in the case of five appointees, we have to have a situation where the prime minister and the leader of the opposition will have to concur. In the case of the other member, we have to have a situation where smaller parties like the TNA and the JVP can agree on a suitable candidate. Given the very adversarial nature of politics in this country, is this a workable system? I would feel that such cooperation would be difficult, if not impossible, to achieve even in the US and the UK. In the US, the Democratic Party also voted to go to war, but when things started going wrong, the Republican party was left holding the baby.
A. Can I say that soon after bringing in the 17th amendment, we didn't have this problem. Members were appointed. Even thereafter in 2005, as far as the prime minister and the opposition leader were concerned, the five members were agreed upon. But people who had vested interests started playing games and waited without appointing that one member who should be appointed by the smaller parties in parliament. My personal opinion is that with the nine members - the appointed, five + the ex-officio three, and the president's appointee - we could very well have set up the constitutional council and carried on. The quorum for a meeting of the CC is only six. The activities of certain vested interests was capitalized upon by the president, not to appoint the CC. Notwithstanding the controversy over the tenth member, I say that the nine members should have been appointed and the CC got functioning. If I get into parliament, I will agitate to bring in legislation that would enable the prosecution of the president, prime minister, or the cabinet of ministers if they violate the constitution.
Q. What you said just now, highlights this whole problem of workability in the 17th amendment. Politics is all about 'games' by vested interests as you just mentioned…
A. Can I say, that the 17th amendment was rushed through parliament and as a result, there are a lot of shortcomings in this piece of legislation. Notwithstanding that, I say that this is one of the most progressive pieces of legislation that has been passed by parliament. If there are shortcomings, we have to put it right in such a way, that any existing loopholes cannot be made use of to avoid compliance. If there is a will, there is a way.
Q. It is very difficult to find a majority to amend the constitution even in the best of circumstances. In such a situation, when you implement a faulty piece of legislation , which you know is unworkable, that's an invitation to anarchy.
A. I don't say it's unworkable. It's workable.
Q. The 17th amendment has not taken into account the very nature of democratic politics. The prime minister and the opposition leader are to cooperate in appointing the constitutional council once every three years. So during the lifespan of a government, this kind of consensus may have to be achieved twice. Year after year and government after government, can we really expect such cooperation? And can we expect smaller political parties like the TNA and the JVP, which hold diametrically opposed views, to cooperate in a similar manner once every three years, to appoint a mutually acceptable person to the constitutional council?
A. If you see that as a defect, let's correct it. Give them the choice of appointing someone amicably, and if they don't, then have another mechanism by which they can be appointed. One such system that I can suggest is; if the prime minister and the opposition leader can't agree on their appointees, let each submit his list of five names to the supreme court and let the supreme court decide.
Q. The 17th amendment should not be implemented before these changes that you speak of, are put in place first.
A. Good governance would require compliance with these provisions. Let's appeal to the good sense of the people who will be elected to parliament next year, to bring about the changes that are necessary. I agree with you that there are a lot of changes that have to be brought in. As I said, there should also be a piece of legislation that would impose criminal liability on those who violate the constitution. Let's not take a negative attitude. Let's tell the people how this constitution is being violated. If there is a change of government, I am sure that the constitutional council will be set up, even without amendments.
Q. There is another problem. Six members of the constitutional council have to be selected for a three year term, and they cannot be reappointed to the CC once their first term is over. What this means is that there will have to be a constant supply of individuals mutually acceptable to the prime minister and the opposition leader as well as the cantankerous minor parties in parliament like the JVP and TNA. How practical is it to have such expectations? From where do we find these people? Do we finish off the distinguished professors of Colombo university first and then go on to Peradeniya university and so on?
A. I fully endorse and accept what you say and that's why I said that even though I consider this a very progressive piece of legislation, this was rushed through parliament and as a result there a lot of shortcomings which have to be corrected. Because of the short time frame left, they had to push it through, rather than look for perfection. As a result, I do concede that there are a lot of areas that will have to be changed. What you say is absolutely right. There should not have been a provision limiting their tenure only for one term. If they are good enough to be there for one term, they should also be eligible for re-appointment. This is a very valid point that you are making.
Q. There is also a grave danger to democracy. Once someone is appointed to the constitutional council, he can't be removed. According to the 17th amendment, the prime minister and the leader of the opposition can, if they both consider a member of the CC to be mentally or physically incapacitated, recommend his removal. But other than these grounds of mental or physical incapacity, no member of the CC can be removed for any reason. The president can't remove them, parliament can't remove them, and the supreme court can't remove them. What are we creating here? If I may illustrate this with an example, we had a situation where former chief justice Sarath Silva was mentioned in both reports on Sri Lanka, put out by the European Commission this year. Some of the reasons for Sri Lanka not being in compliance with the International Covenant on Civil and Political Rights were in relation to the doings of the former chief justice. I don't know what they expected the government do about it as the government cannot remove the chief justice. The government could do nothing other than to wait for him to retire. What if the government is confronted with a situation like that in the case of constitutional council members?
A. There is a lot that could have been done. If the majority of the members of parliament got together, they could have impeached him, if they had the courage to do that. As much as agreeing to what you have said, there is the other side of the coin - if you make members of the CC removable, that will impair their independence and this non-removability is a feature that is necessary to strengthen the hands of that person. If members of the CC know they can be removed, they will not make independent decisions.
Q. This is an Orwellian kind of situation. We are appointing 'guardians' on the basis of trust, to a position where they cannot be removed whatever they do. This is absolute power without any checks and balances.
A. I suppose that's a risk you have to take. They are appointed only for a limited period of time, and these are obviously people of some integrity. So long as you depend on individuals and not machines, that risk is always there.
Q. The question can be asked, why not take that unavoidable risk with regard to one individual, the president?
A. Don't forget that the president is the leader of a political party and a political animal. That's the difference. The people who are appointed to the constitutional council, are not political animals. So I would say that it is better to take the risk with the members of the constitutional council and the independent commissions rather than with the president. Who knows, I might become the president on a future date. But I would tell the people, don't take that risk with me.
Q. There is another question relating to workability. According to the 17th amendment, when the constitutional council appoints the chairmen of the various independent commissions such as the police commission, the elections commissions and so on, there is a provision which says that the ethnic composition of the country has to be taken into account. This is an absolute requirement from which there can be no deviation. If one ethnic community is not represented among the chairmen of the seven commissions, one member of the community such as the Veddha community or the Malays, can file a fundamental rights case and the whole system would be rendered inoperative leading to a constitutional crisis.
A. Unless it is a decision which on the face of it, appears unfair, I don't think one would succeed even if one went to the supreme court. A court, when interpreting the law, will also look at the fairness of the claims. Whoever makes the decisions will have to do so with a sense of fairness. As you say, the Veddah community may have a very good person to represent them, but if the Veddah community is represented and the Muslims or the Tamils who form a larger proportion of the population are not represented, then there's something wrong.
Q. When the 17th amendment says that the appointment of the chairmen of the various independent commissions should reflect the ethnic composition of the country, there will have to be some interpretation given to that to clarify whether the chairmanships will have to go to seven different communities.
A. It doesn't go that far…
Q. That's the point, there's nothing specific, mentioned in the 17th amendment, and this has created another bone of contention.
A. What is said in the 17th amendment with regard to this, is only a guiding principle.
Q. If those guiding principles are not adhered to, to the letter, it will only serve to create more divisions in the country, with some people feeling left out.
A. They will have a right to say that. But when making these appointments, the courts and the appointing authority will do it with a sense of fairness. If only Sinhala Buddhists are appointed to all the commissions, then there will be cause for complaint. But if one or two people from the minority communities are also included, then you can justify your stand. There is no necessity to have every ethnic community represented provided there is a fairness factor involved. Otherwise there may be reverse discrimination with the majority community being discriminated against.
Q. Would you venture to suggest a formula that could be workable? How many from the various minorities?
A. There must be some nominal presence. Maybe one, two or three would be enough. If you take the supreme court, there are eleven judges. Generally we have one Tamil and one Muslim. Sometimes, there could be two Muslims or two Tamils. That sort of a mixture is good enough.
Q. There is another issue. The 17th amendment says that all appointments made by the constitutional council, should be made unanimously. It is the CC that appoints the chief justice, the attorney general, the Inspector General of Police, the Auditor-general and so on. The quorum for a meeting of the constitutional Council will be six. If unanimity cannot be reached, at least five members of the CC have to approve the appointment. The problem is that everything would be fine so long as the decision is unanimous. If however the decision of the CC on an appointment is not unanimous, that appointee will be commencing duties in his new appointment with a serious handicap. Even if a Supreme Court decision is not unanimous, that becomes the talk of the town. Sometimes the dissenting opinion gets more publicity than the majority decision. Five members is only half the constitutional council and does not even represent a majority of the CC. If an attorney general or an IGP is appointed only by five members, and there are up to five other dissidents who say he should not have been appointed, his whole position is compromised. Even his subordinates will look at him differently. At press conferences, we journalists are going to scream at him, "Five men of integrity in the constitutional council did not want you appointed, because you are not suitable to hold that position!" So there's the danger of some of the most important positions in the country going to lame duck appointees who lack credibility in the eyes of his subordinates as well as the general public. You can also be sure that the political columns in the newspapers will carry the reasons of the dissident members of the constitutional council as to why they deemed so and so unsuitable to the position he holds. All this undermines the position that these appointees will hold.
A. People can criticize and say various things. But once appointed, you are vested with all the powers of the position. It makes no difference whether you are appointed unanimously or by a majority of the constitutional council. If unanimity is made mandatory, one member will be able to scuttle everything, so we have to arrive at a practical solution. If three judges sit on a bench and one judge dissents, that dissenting judgement will also be on record, but it will be of no use.
Q. But these are people who have to carry out day-to-day duties. Journalists will be telling them at press conferences, "You are not fit to hold your position, you only scraped by due to a technicality with five out of 10 votes, without even a clear majority!"
A. The election of the president is also like that.
Q. But the president is a politician and he has to get 50 percent plus one more vote - it's a majority decision. Besides people like the IGP have to be appointed from within a closed service - the police department. If in such a situation, there is a division within the constitutional council with one group saying that X is suitable and another group saying that Y is suitable, whoever wins the contest will be compromised as all his subordinates in the service, and the general public will be informed by journalists like myself about the reason why so many members of the CC thought he was unsuitable for the position he holds. The whole situation will be very different to being appointed by the president.
A. If you leave it to a political animal like the president to make that decision, it can have much worse repercussions than a few people saying "Look here, you didn't get the consent of everybody". Once you are appointed, anyone can say anything, but by law and the constitution, you are vested with all the powers. Practicality also requires that one cannot expect unanimity all the time. I said at the beginning that even though this is a progressive piece of legislation, because it was hurried through, there are shortcomings.
Q. What if I suggest that your political party for instance, should not be agitating for the implementation of the 17th amendment but for the amendment of the 17th amendment?
A. No, the need of the hour is the implementation of the 17th amendment. In 2001, one of the reasons why the UNP was able to win the parliamentary election was because of the appointment of the police commission.
After the appointment of the police commission, the infrastructure was not made available for it to function.
But notwithstanding that, the reason why the UNP was able to win was because there was the national police commission in place. Had there been a national police commission now, the present election would have been much fairer.
But certainly, your point of view is right, there are changes that are necessary.
