The media have recently reported that there are moves by the Government to amend the 17th Amendment to the Constitution. These moves appear to be intended to counter the strong criticism that has been levelled by numerous national organisations and individuals, as well as several foreign governments and international institutions, against those who have been openly violating the provisions of the Constitution in general and the 17th Amendment in particular.
From early 2005, when the term of office of the members of Constitutional Council (CC) expired, no effort was made by any of our leaders, both in the Government and in the Opposition, to keep it functioning. Had they shown the necessary interest a few months before the first members of the CC came to the end of their terms, the present dispute about which party in Parliament is entitled to nominate the tenth member would have surfaced at the time. All that these leaders would have had to do then would have been to refer the matter on an urgent basis to the Supreme Court for a definitive order so that the issue could have been settled without delay. Thereafter, new members for the CC could have been selected, and appointed forthwith by the President, so as to ensure that the CC continued to function without a break. In the light of what did not take place, anyone would be quite justified in concluding that the Government had long wanted to cripple the CC because it (the Government) had its own agenda, which was to retrieve to itself the powers which had been devolved on the CC and the Independent Commissions. The Opposition, for its part, was, at that time, very hopeful of success at the Presidential elections and, perhaps, decided that it would be useful to keep the CC in limbo for its (the Opposition’s) own benefit after its hoped-for access to power.
Having hamstrung the CC, with the passive support of the Opposition, the Government is now embarking on trying to amend the 17th Amendment – on the face of it, to refine and strengthen the Constitution, but more likely to gain control over all the Independent Commissions. One is driven inexorably to this conclusion because most of us have no doubt that trying to amend the 17th Amendment will lead to much parliamentary controversy, which would not be resolved in a hurry. The delay would constitute an artificially-created necessity, which would then be used to justify the planned resort to the so-called ADoctrine of Necessity to smoothen the way for the President alone to appoint members to all the remaining non-functioning Independent Commissions. In CIMOGG’s view, this would represent an unforgivable subterfuge to compel the citizens of this country to live with the fait accompli of the recently appointed and the yet to be appointed Aindependent Commissions, each one of which is, or would be, a creature of President Rajapakse and owe its loyalty to him, and to him alone, and not to the people of Sri Lanka.
Every thinking person, including every member of CIMOGG, acknowledges that the 17th Amendment and, indeed, the whole Constitution itself require improvement and would support all lawful efforts to achieve that. However, those of us who respect the Rule of Law want the Constitution to be followed meticulously until the required improvements are discussed extensively by the people and passed in Parliament, strictly in accordance with the applicable provisions in the Constitution.
It would be no surprise to CIMOGG if the Elections Commission was the next one to be activated. All its members would, no doubt, owe their loyalty to President Rajapakse. We may then, in the words of the late Junius Richard Jayawardene, Aroll up the electoral map of Sri Lanka. It would then be but a small step before some loyalist proposes that Sri Lanka should revert to a monarchical system of government, keeping in mind the Ablanket immunity that the President is already supposed to enjoy, to do whatever he wishes with our lives, liberty and possessions.