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Recent media reports seem to imply that the 17th Amendment was enacted in a hurry and therefore ill-conceived. This generalisation is wholly inconsistent with the facts and is therefore untenable.
"The Citizens Consultation on Free and Fair Elections and Depoliticisation of Key Institutions" convened on 14th September 1998 by the then Leader of the Opposition, appointed a largely Independent and Non-Partisan Committee of 18 individuals. On 30th November 1998, a comprehensive report recommending Constitutional Provisions for the establishment of Independent Commissions for Elections, Public Services, Police, the Judiciary and the Constitutional Council was submitted by this Committee. These proposals were thereafter widely discussed by many Civil Society Organisations and even revised.
In October 2000, a draft Bill for discussion to establish Independent Commissions was submitted to the President, OPA, to be submitted to all Political Parties seeking their support in Parliament. As certain provisions were unacceptable to the OPA, extensive consultations with leading experts in the relevant fields were held and a draft 17th Amendment to the Constitution was approved by the OPA in January 2001. These proposals were thereafter submitted to and discussed in great detail at meetings with all the Political Parties in their offices and/or the OPA. The final proposals were then published by the OPA and delivered, inter alia, to all 225 Members of Parliament, seeking their support for the approval of those amendments. Thereafter, a draft Bill prepared by the Legal Draftsman was approved by the Cabinet of Ministers and President Kumaratunga made a written reference addressed to the Chief Justice requiring the Special Determination of the Supreme Court as to the Constitutionality of the Bill cited as "The 17th Amendment to the Constitution", stating that, in the view of the Cabinet of Ministers, the Bill was urgent in the national interest.
On a consideration of the submissions made by the Hon. Attorney General and Counsel for the Petitioners on 21st September 2001, the Determination of the Supreme Court stated, inter alia, that:
"The Bill taken in its entirety has the objective of altering the legal regime for the appointment, regulation of service and disciplinary control of Public Officers forming part of the Executive, including Police Officers, Judges and Judicial Officers and of certain Commissions that wield governmental power. It places a restriction on the discretion now vested in the President and the Cabinet of Ministers in relation to these matters and subjects the exercise of that discretion to the recommendations or approval of the new body to be established, known as the "The Constitutional Council". In that respect the provisions relating to the establishment and functions of the Constitutional Council are the core of the Seventeenth Amendment".
"The Bill is described in its long title as being an Act for the amendment of the Constitution. The provisions to be repealed altered or added have been expressly specified in the Bill, as noted above. Hence we are of the view that the Bill complies with the provisions of Article 82(1) of the Constitution. The Bill will not become Law unless it is passed by the special majority provided for in Article 82(5) of the Constitution. Therefore in effect the only matter for determination by this Court is whether in addition to being passed by the special majority it should be approved by the People at a Referendum as required by Article 83 of the Constitution".
"The question that has to be considered is whether the subjection of the discretion of the President to the recommendation and approval of the Constitutional Council as envisaged by the Bill would amount to an effective removal of the President’s Executive power in this respect".
"Although there is a restriction in the exercise of the discretion hitherto vested in the President, this restriction per se would not be an erosion of the Executive power by the President, so as to be inconsistent with Article 3 read with Article 4(b) of the Constitution".
"We have examined the remaining provisions of the Bill with the assistance of the Hon. Attorney General and we do not see in any of them any issue that would require consideration by this Court in terms of Article 83 of the Constitution".
"Accordingly this Court determines that the Bill titled "The Seventeenth Amendment to the Constitution:
(a) complies with the provisions of Article 82(1) of the Constitution;
(b) requires to be passed by a special majority specified in Article 82(5) of the Constitution; and
(c) there is no provision in the Bill which requires approval of the People at a Referendum in terms of the provisions of Article 83".
This determination was announced in Parliament by the Hon. Speaker on 24th September 2001 and the Bill was debated at length on 25th September 2001. In view of concerns expressed by some members that the interests of the minorities were not adequately safeguarded, it was agreed, at the last moment to provide that 3 of the 5 members, nominated by the Prime Minister and the Leader of the Opposition, would be nominated to represent minority interests, in consultation with the Members of Parliament who belong to the respective Minority Communities. It was thereafter passed with only one abstention.
It is a noteworthy fact that this was the only provision that was hurriedly made.
The Act cited as the Seventeenth Amendment to the Constitution was certified on 3rd October 2001 and thereupon the several amended provisions referred to in sections 2 to 23 and 27(1) of the said Act became operative, as fully fledged Constitutional provisions, which included the following:
41A (1) "There shall be a Constitutional Council which shall consist of the Prime Minister, the Speaker, the Leader of the Opposition, one person appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition, and one person nominated upon agreement by the majority of Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs and appointed by the President.
(5) The President shall upon receipt of a written communication of the nominations ......... forthwith make the respective appointments.
41B No person shall be appointed by the President as the Chairman or member of The Election Commission, The Public Service Commission, The National Police Commission, The Human Rights Commission, The Bribery or Corruption Commission, The Finance Commission, or The Delimitation Commission, except on a recommendation of the Council.
41C "No person shall be appointed by the President to the office of Chief Justice and, Judges of the Supreme Court, The President and Judges of the Court of Appeal, Members of the Judicial Service Commission other than the Chairman, The Attorney General, The Auditor General, The Inspector General of Police, The Ombudsman, and the Secretary General of Parliament, unless such appointment has been approved by the Council.
41E (3) The quorum for any meeting of the Constitutional Council shall be six members.
54 (1) There shall be a Public Service Commission which shall consist of nine members appointed by the President on the recommendation of the Constitutional Council.
59 (1) There shall be an Administrative Appeals Tribunal appointed by the Judicial Service Commission.
61E The President shall appoint the Heads of the Army, the Navy and the Air Force.
103(1) There shall be an Election Commission consisting of five members appointed by the President on the recommendation of the Constitutional Council.
103(4) (a) The Commission shall have the power, during the period of an election, to prohibit the use of any movable or immovable property belonging to the State or any Public Corporation:
(i) for the purpose of promoting or preventing the election of any candidate or any political party or independent group contesting at such election;
(ii) by any candidate or any political party or any independent group contesting at such election.
(b) It shall be the duty of every person or officer in whose custody or under whose control such property is for the time being, to comply with and give effect to such direction.
111D (1) There shall be a Judicial Service Commission consisting of the Chief Justice and two other Judges of the Supreme Court appointed by the President, subject to the provisions of Article 41C.
155A There shall be a National Police Commission consisting of seven members appointed by the President on the recommendation of the Constitutional Council.
As then Leader of the Opposition, Mahinda Rajapaksa together with then Prime Minister Ranil Wickremasinghe informed the President on 21st February 2002, that they nominated 5 persons for appointment to the Constitutional Council which was first appointed on 22nd March 2002. However after the term of office of the 1st Constitutional Council expired on 22nd March 2005, Prime Minister, Mahinda Rajapaksa did not, in consultation with then Leader of the Opposition Ranil Wickremasinghe, nominate five persons for appointment to the Constitutional Council.
Prior to assuming office as President on 17th November 2005, Mahinda Rajapaksa solemnly declared and affirmed that he "will faithfully perform the duties and discharge the functions of the office of President in accordance with the Constitution" and that he will "to the best of my ability uphold and defend the Constitution".
Accordingly, he declared that the Independent Commissions could not be appointed until the Constitutional Council was appointed and, on 6th April 2006, addressed a letter to the Speaker urging him to activate the Constitutional Council. However, on 10th April 2006, he side stepped the Constitutional Council and made appointments to the Public Service Commission and the National Police Commission in violation of Article 41B of the Constitution.
In clear disregard of actions instituted in the Courts and representations made by many Organisations, the President thereafter appointed his own nominees as Judges of the Superior Courts, Members of the Judicial Service Commission, the Attorney General, the Auditor General, the Inspector General of Police and the Secretary General of Parliament, in clear violation of Article 41C of the Constitution. Subsequent to the expiry of the terms of office of the Public Service Commission and the National Police Commission appointed by him, his Cabinet of Ministers has, in violation of the Constitution, assigned the powers of the PSC and the NPC to the Ministry Secretaries and the IGP pushing the country into an unconstitutional regime of governance which is the threshold to the state of anarchy, causing extensive and irreparable harm and damage to Sri Lanka.
Section 27(2) of the said Act which was not a Constitutional provision, provided that:
"The person holding office as the Commissioner of Elections on the day immediately preceding the date of the commencement of this 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 Election 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".
This provision in the said Act vested the Commissioner with all the Executive powers of the Election Commission as provided in the Constitution as amended. This was clearly only a transitional provision and could not, reasonably, be interpreted as vesting him with immunity from other Enactments and even "Immortality".
Strangely, this is the only part of the 17th Amendment that is being observed by the President, notwithstanding the Commissioner’s plea to the new President that he be permitted to retire. The directives now issued by the Commissioner in the exercise of the powers vested in him by the said section of the 17th Amendment are disregarded by the President whose acts are in violation thereof.
The only sanction for intentional violation of the Constitution is prescribed in Article 38(2)(a)(i) of the Constitution, viz. the initiation of impeachment proceedings which is clearly futile in the present circumstances.
The impending election may be the only opportunity to stem this callous disregard of the Constitution.
