The Lost Opportunity to Tame the Tyrant; 17th Amendment to the Constitution of Sri Lanka

The most controversial political office in the history of Sri Lankan politics is unarguably the post of Executive Presidency. It was established by the Second Republican Constitution in 1978. The mastermind in implementing that, President J.R.Jayawardena wanted a stable government with a firm executive free from the clutches of the legislature to rapidly develop the country. At least that was his initial plan. Now more than four decades later almost all the political experts agree to the fact that the Executive Presidency has lost its initial purpose. It has drifted from the role of an efficient ruler into a tyrant.

Failed promises and election manifestos to abolish the executive presidency has been in the political arena for a long time. Many presidential candidates promised to abolish it but later stick it to the office they promised to abolish. Recently, the common candidate of the opposition promised to abolish this office within 100 days. Even before the declaration of the presidential election, the opposition parties, even parities from the ruling coalition government and civil societies were lobbying for an abolition of the Executive Presidency If not for a Constitutional Amendment to limit its power. Prominent Buddhist monk, Ven Maduluwawe Sobitha Thero had taken an early lead in shaping the public opinion regarding this issue. Initially, Sobitha Thero was not convinced of abolishing that post entirely. He wanted the incumbent president not to go for an election but to amend the constitution, to at least limit the tyrannical powers of the executive.

Even long before the election of the incumbent president on whose term the powers of the executive was abused to the eternity, according to some political experts, Sri Lanka had a mechanism to somewhat limit the power of the executive in appointing members to independent commissions. It was the 17^th Amendment to the Constitution. With that amendment, presidential control on the public service, judicial service, elections and Finance was drastically limited. Although the amendment was introduced in October 2001, it was never fully implemented or exercised effectively. Finally it was all but repealed by the 18^th Amendment in 2010.

This article will analyze the 17^th Amendment and how it controls the executive.    

The main purpose in enacting the 17^th Amendment was to limit the presidential powers in appointing the members of the independent commissions. It is obvious that if they are to be appointed solely on the discretion of the president, the independence of those commissions would be compromised.

Constitutional Council

Composition

The Constitutional Council was the epicenter of this amendment. It consisted of (a) the Prime Minister (PM) (b) the Speaker (c) the Opposition Leader (d) a person appointed by the President (e) five members appointed by the President on the nomination of both the PM and the Opposition Leader (f) one person nominated by the other political parties. Out from the five members appointed by the President, three should be from the minority communities. Those members in d, e and f category should not belong to any political party. It was a good chance that those members are from the intellectual faction of the society. When removing those, the PM and the Opposition Leader both has give consent. This prevented arbitrary removals by the President.

Even if we assume that the President’s party controls the majority and the government and the PM is from that party, the President can’t appoint the people he likes. The factions of the Constitutional Council don’t sit in the favor of the President. The appointed members by the PM and the Opposition Leader (minority communities have 3 seats) will be independent and may stand up to the appointment which are unfavorable to them.

In a hypothetical situation; typical constituent of the Council

President’s Side	Others
PM	Opposition Leader
Speaker	Minority party nominee
One nominated member by the President	5 X member nominated by both PM and Opposition leader
3	7

Working of the Council

Council makes appointments according to two methods

41B: Council recommends personnel for certain independent commissions. It’s only upon the Council’s recommendations that the President can appoint them.  Arbitrary removal is prevented by requiring the consent of both the PM and the Opposition Leader. Recommendations should be approved by more than 4 members of the Council.

The independent commissions;

• ·         The election commission
• ·         The public service commission
• ·         The national police commission
• ·         The human rights commission
• ·         Bribery commission
• ·         Finance commission
• ·         Delimitation commission

41C: President can appoint them by only after the Council has approved the appointments. These appointments included key persons in administration

• ·         Chief Justice and the Judges of the Supreme Court
• ·         The President and the Judges of the Court of Appeal
• ·         Members of the Judicial Service Commission except for the chairman
• ·         The Attorney General
• ·         The Auditor General
• ·         The Inspector General of Police
• ·         Ombudsman
• ·         The Secretary General of Parliament

The Constitutional Council was made immune to judicial proceedings other than proceedings on the article 126. It is clear to say that the Constitutional Council is the stepping stone for the appointment for all the key administrative and judicial personnel. Since the Constitutional Council can’t be handled by the President according to his discretion, the appointments for the commissions will also be independent. This is much needed one because all the key governmental positions are now handled by the people appointed by the President according to his will without referring to any advice from anyone whatsoever. Public service and Judicial service was hit severely. The prominent example was the appointment of the Former Attorney General who was the head of a government department  to the position of Chief Justice(CJ) which needed to be as independent as independent can be!!! Government’s chief law officer who represented the government in litigation can be assumed to have an inclination towards favoring the person who appointed him. This position clearly illustrated by the Supreme Court decision on the validity of removing the former CJ.  

54: Public service commission was appointed by the Council. It takes the power of the president to appoint, remove, transfer, promote and take disciplinary actions. Heads of the departments and policy making was still vested in the cabinet. Military commanders are appointed by the President upon his power of the commander-in-chief of the Armed Forces. Even with the above limitations, the Public Service was controlled by an independent commission appointed by independent Council. That was a progressive move for an uncorrupt public service. Interference with the Public Service Commission was also deemed to be a punishable offence making political interference impossible at least theoretically.

103(1): Election commission was appointed by the Constitutional Council with the aim to enforce free and fair elections and referenda. It can prohibit the use of public property for election purposes. It can appoint a management for government media corporations such as Sri Lanka Broadcasting Corporation and Sri Lanka Rupavahini Corporation if they failed to comply with the election commissioner’s guidelines thus preventing the use of government media inappropriately. The wide powers of this commission extend even to the deployment of Police and Armed Forces personnel. All of the above to ensure the right of free and fair elections. Since the commission was to be appointed by an independent Council, the members of the commission were also deemed to be independent.

National Police Commission and Judicial Service commission were also appointed by the Council with the aim of independently controlling the police and judicial service respectively. Specially, for the enhancement of the rule of law of a country, the need of an independent judicial service is eminent. The body that controls the judges should also be independent. It all comes to an Independent Constitutional Council free from the control of the President to appoint the Judicial Service Commission.

The 17^th Amendment was enacted in 2001 it was operational for almost 9 years until it was repealed by the 18^th Amendment. We should have the question of whether the independent Constitutional Council was effective in those 9 years. Unfortunately it had become the victim of the partisan politics that plagued our country since the independence. There is a fundamental flaw in the Constitutional Council. In appointing members for the Council, agreement between the Prime Minister and the Opposition Leader needed to be made. What if they couldn’t reach for an agreement? That halted the whole process. Also nothing could be done for the non-inclination of the President to accept the recommendations of the Council. Since the President is immune to judicial inquiry, no proceedings could be initiated against the President. The only remedy was bringing an impeachment against the President according to the Article 38(2) of the Constitution alleging intentional violation of the Constitution but it is apparent that it is easier for a camel to go through the eye of a needle than for the legislature to impeach the President with the existing constitutional provisions.

Until it is repealed by the 18^th Amendment, although the 17^th Amendment was a part of our constitution, the Constitutional Council was poorly performed due to the tug of war between the government and the opposition parties. The inherent flaws of appointment procedure and the lack of provisions to tackle the insubordination by the President for the recommendations by the Council rendered the 17^th Amendment useless.

Now the political arena was full of promises to clip the wings of the tyrant executive and even to restore a prime minister who is responsible for the parliament. i believe that, right now there is no hurry to completely reverse the Executive Presidential system or make a complete constitutional reversal but some amendments like 17^th needed to be implemented. It will be important not to repeat the same mistakes of the 17^th Amendment. Controls to the Executive Presidency and remedies if the President did not comply to the recommendations made by the constitutional amendment can be incorporated. Impeachment procedure of the President will also need to be changed.

It is far easier and less risky to tame the fiery dragon than to kill it and recruit another. It is not wrong to say that there are some advantages of having an Executive President as well. It will be a great political victory if all of us can find a way to keep the benefits of the Presidency while removing the tyrannical aspects of it.