Sri Lanka politics and commentary

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Wednesday, November 11, 2009

An Amendment From Hell

C.A. Chandraprema

The still unresolved conflict between the executive and the judiciary shows what can happen even in the best of circumstances. We have a president and a chief justice who are both identified with the Sinhala Buddhist cause. The president is leading a war against Tamil separatism and the chief justice de-merged the east from the north while the president liberated the de-merged east from the LTTE. The president appointed the Eastern Tamil leader Karuna Amman to parliament and the chief justice ensured that he remained there. The chief justice preaches Buddhism on TV but is not seen by the minorities as being against them and he has Tamil lawyers as some of his strongest supporters as they feel they will always get a sympathetic hearing from him on fundamental rights cases. Similarly, even though the president is waging a war against the LTTE, he is not seen as being anti-Tamil by non-LTTE Tamils. Even with two who have much in common at the helm, a conflict has arisen between the judiciary and the executive of such nature that it even threatened to bring the whole country to a standstill.

This conflict has nothing to do with any peculiarity of the present constitution because the separation of powers doctrine applied in the case of the 1978 constitution was more or less the same as that applied in the 1972 constitution. If this is what can happen even under normal constitutional provisions, one dreads to think what will happen to this country if the 17th amendment is given effect. In the view of the present columnist, the 17th amendment is like a disaster waiting to happen. Nobody will question the good intentions behind the 17th amendment. But the mechanisms put in place to achieve these good intentions could turn out to be extremely impractical and could be even more disruptive of normal life than even the present conflict between the judiciary and the executive over petrol prices.

The 17th amendment provides for a ‘Constitutional Council’ which will be entrusted with the task of effectively making all the top appointments in the country. This was with the good intention of doing away with the practice of the president or the ruling party stuffing the top positions with their lackeys and supporters and running the country as they wished. Because of the noble intentions behind this piece of legislation, it has become the holy cow of Sri Lankan politics. To some, it is above criticism. Even if one criticises the constitution, the prevailing attitude is that nobody should criticise the 17th amendment. But the present columnist has serious doubts as to how workable the 17th amendment will be.

Amendment from hell

The constitutional council is made up of ten persons, the Prime Minister, the Speaker, the Leader of the Opposition in Parliament, 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 finally one person nominated upon agreement by the majority of the 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.

It should be noted that the president who according to the constitution, is supposed to be the head of the executive, is not a member of the constitutional council and will be represented on it by just one member appointed at his own discretion. Needless to say that when the head of a political party, who is also the head of state and the head of the government is kept out of the decision making process with regard to key appointments, he will be a baneful and resentful presence in the background.

The question that arises is that the president as the elected executive will be responsible for the implementation of policy while those who have to carry it out will be independent of his control. How then can the executive implement what it promises the people?

Then, five members of the CC have to be appointed by the president on the recommendations of both the prime minister and the leader of the opposition – which means that both the prime minister and the leader of the opposition have to agree on five individuals to appoint to the constitutional council. In the context of the extremely adversarial politics of this country, it is a moot point whether the prime minister and the leader of the opposition will be able to agree on five eminent persons who are not members of any political party, to appoint to the constitutional council once every three years. Human nature being what it is, each party is going to try to stuff the CC with those partial to itself and if the other party objects, then these appointments are going to be an ongoing source of conflict and contention within the body politic.

The question one has to ask here is that if the framers of the 17th amendment had so much faith in the better side of human nature that they could assume that the prime minister and the leader of the opposition could lay aside their political agendas for a moment to appoint five members of the constitutional council, then why could they not have assumed as the framers of the 1972 and original 1978 constitution did, that the executive will be of such integrity, that it would only appoint people of suitable eminence and qualification to the top positions in the country? It is impossible to legislate without reposing one’s trust somewhere. The earlier framers of the constitution reposed their trust in the executive elected by the people. The framers of the 17th amendment do not obviously trust the executive, so they have sought to keep the president out of the picture with trust being reposed on the prime minister and the leader of the opposition.

Even that would have been alright if that trust had been reposed on one side. But because the framers of the 17th amendment are suspicious of the intentions of both sides in parliament, they have brought in that clause that the prime minister and the leader of the opposition have to agree on five appointments and this is where the problems will arise. We have in this country a chief justice who has been a long standing friend of the president and the former had even signed as a witness at the latter’s wedding. We now see the kind of conflict that is possible even in such circumstances. So how can we expect two individuals whose official, acknowledged role in the country is to oppose one another, to see eye to eye, year after year, on the appointment of five members of the constitutional council? The 17th amendment has not provided for an escape route if a stalemate occurs.

A moment of indiscretion

As if expecting habitual opponents to cooperate was not bad enough, the 17th amendment has added more burdens upon them by introducing the clause that in nominating the five persons referred to, the Prime Minister and the Leader of the Opposition shall consult the leaders of the political parties and independent groups represented in Parliament. Three of such persons shall, in consultation with the Members of Parliament who belong to the respective minority communities, be nominated to represent minority interests! So it is not as simple as the PM and the leader of the opposition having to agree with one another for a change, instead of disagreeing as their roles require, they also have to talk to the various political parties in parliament, to get them to agree on the appointment of the five members, three of whom have to be from the minorities. In other words, they are not only expected to agree among themselves, but expected to get the JVP and the TNA to agree on suitable candidates as well! If the day to day running of this country is going to hinge on such a convoluted process, which flies in the face of human nature itself, then every citizen of this country should be very concerned. The entire functioning of the public service, the police, the elections office could come to a standstill if the appointment of the constitutional council hits a snag as the constitutional council has to recommend the appointment of the chief justice, the attorney general, the auditor general, the inspector general of police among others.

The 17th amendment is inconsistent with the presidential system of government and indeed even with the parliamentary form of government. It is designed to remove the power of appointing top officials of the state from the president and to bring it back to parliament. But even in a parliamentary system of government, the PM and the leader of the opposition are not expected to agree on such appointments. This constitutional amendment was a knee-jerk reaction to the abuse of power under the first seven years of the Chandrika Kumaratunga presidency. At that time, it may have seemed a good idea to all concerned, to curb the powers of the executive, regardless of the disruptive effect it will have on the day to day functioning of the country, because the biggest source of political instability in the country at that time was president Kumaratunga herself. The impracticability of the 17th amendment was lost sight of in the general confusion prevailing at the time with everyone rushing headlong to escape Chandrika Kumaratunga.

But in calmer retrospection, this constitutional amendment does not seem a good idea at all. The 17th amendment was passed by parliament only because of the pressure brought by the JVP on Chandrika Kumaratunga to adopt it in exchange for giving the PA a parliamentary majority for the ‘pariwasa aanduwa’ in late 2001. The JVP is not too careful when they impose conditions like this. At one point, they were trying to get Mangala Samrawera appointed prime minister in exchange for JVP support for the Rajapakse government – a demand they would have regretted later. Likewise, imposing the 17th amendment on this country was a major mistake made by the JVP.

Legislation that is brought in with a gun held to the head should always be reconsidered once the gun is removed. It became law in late 2001 and the person who ruled the country for the next two and a half years was Ranil Wickremesinghe, who showed no interest in implementing the 17th amendment. This was followed by one and half years of rule by Chandrika Kumaratunga, who also showed no interest in implementing it. President Rajapakse has been in power for three years and he reportedly loses his temper at the mere suggestion that the 17th amendment should be implemented. In the view of the present columnist, all three leaders should be congratulated for not having implemented this unworkable piece of legislation.

There is one problem though. In the absence of the constitutional council the president can continue to make appointments like the Inspector General of Police. But the appointment of the next elections commissioner has to be done by the elections commission, which has to be appointed by the constitutional council. So long as the present elections commissioner stays on in office, things will be alright, but if he retires or dies, the whole country is going to be in a mighty mess, because to replace him, the 17th amendment will have to be implemented. It’s harrowing to think that the only thing that stands between us and anarchy is one man, already past retirement age.

"Politicians are ganging up against the 17th amendment"
- Rohan Edirisinghe

The 17th amendment to the constitution which was passed in October 2001, has come in for a great deal of criticism, with some raising questions about its practicability. The fear being that if this constitutional amendment is implemented, the country will be rendered ungovernable. In this interview, C.A.Chandraprema speaks to Rohan Edirisinghe of the Centre for Policy Alternatives about the practicability of the reforms envisaged in the 17th amendment.

Q. What is your overall assessment of the 17th amendment to the constitution?

A. Most of our constitutional amendments have been introduced for partisan political reasons and to strengthen those who wield political power. If you look at most of the amendments introduced by President Jayewardene, they were all basically designed to favour him and the ruling party. The 17th amendment goes against that trend as it seeks to depoliticize the appointment of important officials to key institutions and promote independent institutions. These were two issues identified by the commission on youth unrest appointed by President Premadasa as being among the main reasons for young people to be totally cynical about our political system. I think the rationale underlying the 17th amendment to the constitutions is something very positive.

Q. Well that’s the underlying rationale. But how practical do you think the goals are that the 17th amendment has set out to achieve? For example, this de-politicisation that you speak of is supposed to be brought about by removing the president from the process of appointing certain key state officers, and vesting that power in parliament, where the prime minister and the leader of the opposition have to agree on these appointments. The problem is this – it’s not a once and for all agreement. Once every three years, they will have to agree on new appointments to the constitutional council. So within the lifetime of one parliament, there may be two or even three occasions on which the leader of the opposition and the prime minister who are natural adversaries have to agree on the five members to the constitutional council. How practical do you think this is?

A. I think the 17th amendment has flaws and can be improved. But I am totally opposed to the argument that it should not be implemented until those flaws are rectified. This is an extremely dangerous argument put forward by this government and the JHU. My position has always been that the 17th amendment has to be obeyed, and as a parallel process you engage in review and reform. On your particular point however, I do not think that is a flaw or that it is impractical to expect the Prime Minister and the Leader of the Opposition to come together to identify a group of people who would form the constitutional council. I think its healthy to be reminded of the fact that the Prime Minister and the Leader of the Opposition both play important roles in a democracy and on certain occasions they have to work together to identify five people. I do not agree with the view that this will have to happen three times within a parliamentary term. Once the constitutional council is in place and once the prime minister and the leader of the opposition have identified the five people, their role ends and the constitutional council will continue for four or five years. So I do not think it’s impractical, and the record speaks for itself. There has been absolutely no problem in the prime minister and the leader of the opposition agreeing on five people except that there was an unacceptable delay in the meeting taking place. But they have identified five people and they did so a long time ago. The problem is in the President refusing to activate the constitutional council because his power is reduced by the 17th amendment to the constitution.

Q. When it comes to reducing the powers of the president, isn’t it he who is ultimately responsible to the people for the promises given by his party to the people?

A. The President has to do so in terms of and subject to the Constitution. Furthermore, it is the role of the executive to design and implement policy. It does not necessarily include appointing people to key institutions. It’s important that these appointments be removed from partisan politics. The 17th amendment removes the president’s powers to appoint key people to some institutions which are considered to be so important that they have to above partisan politics.

Q. You seem to suggest that once the prime minister and the opposition leader agree there will be no problem. But they have to agree in this manner once every three years, because the constitutional council will hold office only for three years. If a government is voted out of office and the constitutional council has be reappointed one year later, in the fourth year of that parliament the CC will have to be appointed yet again.

A. So that strengthens my point. The constitutional council will continue even if governments come and go. That’s the whole rationale. We are not talking about the appointment of cabinet ministers or anything like that. We are talking about certain officers where there is the general expectation that these people have to be independent.

Q. Yes, but we have seen these same key officials continuing through many changes of government even without the 17th amendment. Officers like the attorney general, the elections commissioner, the IGP, the chief justice and others have almost always stayed out their normal term despite changes of government.

A. Yes thank goodness. I hope you are not suggesting that when a new government comes to power, they should have the freedom to appoint their own elections commissioners, IGPs and so on.

Q. No, I’m not saying that. What I am saying is that this has in any case been the practice even without the 17th amendment and the CC. During the past five years we saw about four changes of government but key officials of the state remained the same, doing their usual terms in office. So this has been the usual pattern and the 17th amendment does not introduce anything new.

A. But the point is that there is the risk of removal and the uncertainty arising from that. In the 1950s and 60s there may have been conventions and officials may have been appointed according to certain unwritten rules. But ever since the early 1970s, with the 1972 constitution and the politicization of the key institutions, the rot set in and it was made worse under the 1978 constitution. So you had, for example, Justice Wanasundara being overlooked for chief justice because of his decision in the 13th amendment case, you had people penalized for acting independently. Remember that there was so much frustration about this and as a result many institutions did not command respect. I remember G.L. Peiris and Radhika Coomaraswamy telling me that the thing that struck them the most when they were on the presidential commission on youth unrest – was the total lack of confidence in key officers and key institutions. There is a need to entrench in the constitution, certain guidelines and norms, to restore public confidence in the main democratic institutions of the country.

Q. During this conversation, you mentioned that youth commission report twice. I have not read this report. But they appointed this commission to look into the causes of the JVP’s second insurrection. Whatever is said in the youth commission report has to be disregarded for this reason – the JVP is a Marxist organization and its very rationale was to seize power by force, and to come into power the same way that Lenin, Mao Tse Tung, Ho Chi Minh and others came into power. They don’t need reasons or grievances to launch a revolution. Their very existence as an organization is the reason for launching the revolution.

A. The youth commission did not talk just to JVPers only. They spoke to individuals and groups throughout the country while they made a special attempt to talk to young people about their concerns and complaints and the issue of the lack of credibility of important institutions was one of the major points raised. This need for independent institutions has, therefore, been a recurring theme since the early 1990s.

Q. I am just raising a procedural question. Just supposing the prime minister and the leader of the opposition are unable to agree on appointments to the constitutional council, They may have done it once, but that does not mean that it is going to happen the next time. The whole country will be plunged into a situation of uncertainty because two people who are natural adversaries are expected to co-operate. Why would the leader of the opposition want to make things easy for the government? If the country is rendered ungovernable, it is the government of the day that suffers, not the opposition. The opposition will in fact benefit from such a situation.

A. It is in the interest of the opposition to have independent institutions. If there is an impasse between the PM and the Leader of the Opposition, then the solution would be to have a clause in the 17th amendment setting out what happens if the PM and the Leader of the Opposition fail to agree. This was discussed in the parliamentary select committee on the 17th amendment, and the suggestion in the interim report, which was very positive was that until the new appointments are made, the earlier appointees continue in office.

Q. This is easier said than done, because there is no such escape clause in the 17th amendment at the moment. If you look at the stalemate that has occurred with regard to the electoral reforms that have been discussed for some time now, and we have a similar stalemate with regard to these amendments to the 17th amendment, then what happens?

A. If the existing constitutional council remains in office until the new appointments are made, there will be absolutely no problem. This was, as I said, agreed to in fact in the select committee on the 17th amendment. That was an agreement reached across party lines.

Q. But this is not in the law. So what happens if there is a stalemate?

A. One has to ensure that the letter and spirit of the 17th amendment which is part of the supreme law of the land is observed as far as possible. The judiciary may have to intervene. After all its fundamental duty is to ensure that the constitution is upheld. I’m quite willing to accept the point made in your Sunday column that Ranil Wickremesinghe is not interested in the 17th amendment. No politician would be interested in the 17th amendment. Look at what Vajira Abeywardene, the UNP MP has been saying in the Public Petitions Committee. He has proposed that the decisions of the public service commission should be reviewed by a committee of politicians. To make matters worse, he seems to have convinced his colleagues from the JVP and PA as well. So the politicians don’t like the 17th amendment. The 17th amendment is meant to empower the people at the expense of the politicians. So we must mount pressure on the politicians to implement the law. That is why it is dangerous to say that we have to wait until the law is improved, because the politicians have no interest in improving a law that reduces their powers.

Q. I will now come to another point. People say that the attorney general should be non-partisan, the IGP should be non-partisan. That is accepted. Almost all holders of such positions are promoted from within those institutions, departments or professions as the case may be. Don’t you think that alone imposes certain restrictions on the executive? And if you look back, all heads of the executive arm up to now, even those whom we have identified as having been particularly autocratic, like President Premadasa, and Chandrika Kumaratunga, did not appoint Sotthi Upali or Beddagane Sanjeewa as the IGP. So there are certain limits that apply.

A. Yes, but these checks and balances can be manipulated. And the message that goes to those in these departments is that you have to be in the good books of those in power to get ahead. You are right in that we must not over-romanticise the 17th amendment and say that it introduced concepts of independence that never existed before. But having the 17th amendment enhances the possibility of having independent people. I don’t think the checks and balances that you referred to are adequate to deal with the situation in Sri Lanka. Look for example at the manipulation that goes on in the police during election time.

Q. The point is that however much you manipulate the police during election time, if a particular government is on its way out, then its on its way out. In 2001, what didn’t the Chandrika Kumaratunga regime do to stay in power? But they were wiped out. That is the established pattern in this country and this is something that we can take for granted. If there is an unpleasant government in power, they can always be removed.

A. I don’t agree with that. If you have the kind of manipulation that took place at the referendum of 1982 or at the infamous Wayamba provincial election for example, its too much of a risk.

Q. The 17th amendment looks nice on paper, but what will it do to the day to day functioning of this country? We have reposed our trust in the supposed ability of two natural adversaries to cooperate….

A. The two people concerned have done their job. They have identified five people. The problem is with the president. His philosophy is a kind of populist authoritarianism philosophy – "I was elected by the people, and I should be allowed to appoint anyone I want, to important institutions". This is very alarming and contrary to basic principles of Constitutionalism.

Q. I don’t see anything wrong in that because all heads of governments have been doing that from 1948 onwards. The 17th amendment is based on a certain mistrust in people wielding power. One of the main problems that I have with the 17th amendment is that in the case of these independent officials, they can’t be removed. We can remove politicians, but not officials from their position.

A. Constitutionalism is based on the premise that ANY PERSON who exercises power is prone to abuse it. This is why we have a Constitution- for the people to impose restraints on those who wield power. With regard to officials there are checks and balances too. There is the possibility of removal for incompetence and things like that and anyway, they are appointed only for a fixed term, so they are not going to remain in power indefinitely.

Q. When we go to a government department, getting your work done is an absolute nightmare. You have to have someone known in the department or you have to have some way of making approaches to people within. If you give them absolute unfettered power to do as they wish without the possibility of pressure being brought from outside to get them to do their work, then this country is finished.

A. That is perhaps one side of it. On the other hand, if you have a public service, where recognition and promotions are decided on performance and merit, instead of having to ingratiate yourself with the minister and so on, isn’t it the case that the culture in the public service will improve?

Q. The poor man’s way of getting the government agencies to work is to go to a politician. Nothing gets done except at the whim and fancy of the public servant. This is so at every level.

A. I feel that the solution to this is not to have a system whereby nothing moves except at the whim and fancy of the politicians. The assumption at the time the 17th amendment was brought in was that the notion of an independent public service, free from political interference was a good one.

Q. If we are both agreed that there are flaws in the 17th amendment that have to be rectified, then it should be implemented only after those flaws are corrected.

A. No, the Constitution must be obeyed. The delay in implementation based on the existence of flaws is utterly unacceptable. The next argument will be that since our electoral system is flawed we should postpone elections until the flaws are rectified. The argument is a recipe for authoritarianism. Furthermore, there has been absolutely no commitment or sense of urgency to improve the 17th amendment. The select committee on the 17th amendment couldn’t get a quorum for several of its meetings. The interim report, though basically positive in terms of its substance, was produced after a long delay.

Q. If they didn’t have a quorum, that means there was no interest on both sides.

A. Yes, but this is not surprising. My fundamental point is that this is a people versus politicians battle. The 17th amendment is one of those rare constitutional amendments that empower the people at the expense of the politicians. Now the politicians are ganging up to undermine this amendment that is in the interests of the people.

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