Rotten to the core

Why the 17th Amendment is a piece of legislature destined to be a football - kicked around forever, never quite reaching the goal posts….

By Dharisha Bastians
It wasn’t an April fool’s joke after all, the screaming headlines in most national newspapers yesterday morning. It was true – and incongruously so. After so much haranguing in Parliament over the last several weeks, the President once again showed everyone who’s boss by making an appointment of his choice to the hallowed position of Parliament Secretary General, and to hell with the Constitutional Council (CC).

Legal experts are claiming that the appointment, made with complete contempt for the 17th Amendment stipulated in the supreme law of the land, is valid for a mere 14 days, tying the hands of the executive soon after and disallowing him to proceed with a further ‘acting’ appointment. It remains to be seen, of course, whether the lack of legal provision would prove deterrent enough for President Rajapaksa, who has gotten quite comfortable making ad hoc appointments to commissions and institutions in the absence of a functional CC.

Logically, given the Sri Lankan political psyche, there’s no earthly reason to motivate Rajapaksa to accept the minority party nominee and allow the CC to be set up. In fact, all the chips would continue to be stacked in the President’s favour, only if he fails do precisely that.

It would be the rationale adopted by any Sri Lankan politician in the driving seat, since the commissions established under the 17th Amendment serve only to take power away from politicians and vest it in the bureaucracy or the administrative arm of the State. And why would any right thinking Sri Lankan politician want that?

Take for instance the Elections Commission – the only one of the commissions stipulated under the 17th Amendment that has never seen the light of day, leaving an ailing Commissioner Dayananda Dissanayake, to continue holding the baton, much against his will. The setting up of the ‘independent’ Elections Commission would effectively spell doom for any Sri Lankan political party, given that, almost all of them would choose the path of expediency over principle.

An Elections Commission, during the time of an election, would be well within its jurisdiction to take over key arms of the State, including State media, leaving incumbent administrations helpless without their most powerful tool during the campaigning period. All other commissions pose similar problems, putting an end to ad hoc political appointments to the public service, police and judiciary. All in all, not appealing to our run of the mill politicians one little bit.

The 17th Amendment was brought about by unanimous vote in Parliament, to undo some of the two-decade-long crises that have plagued the State sector. It all began when the country’s first executive president, J.R. Jayawardene, in his wisdom, allowed politicians to appoint secretaries to ministries, by way of the 1978 Constitution. Until then, Sri Lanka’s Civil or Administrative Service was highly respected and beyond reproach and political influence. With the 1978 Constitution, and the stipulations therein, JRJ allowed for the sidelining of the Administrative Service, when it came to the appointment of the Chief Accounting Officer of ministries (or Secretaries to Ministries), the highest bureaucratic position within any government ministry.

Up to 1978, these appointments had been made purely on the basis of seniority and civil servants could rise through the ranks to the position of secretary. The new system meant total outsiders – even those without any grasp of the bureaucratic system, could now ascend to the most crucial position at a ministry and of course, everything underneath that. JRJ also decreed by his disastrous 1978 Constitution that the Chief Justice and judges of the superior courts would be appointed by the executive, doing away with once more the tradition of seniority within the judicial service, when it came to the appointment of judges.

As the rot set in, beginning in the year 1978, things got progressively worse. Today, Sri Lanka is not only the proud possessor of hooligan politicians with the power to make key bureaucratic appointments, it has, by virtue of the same, also inherited a politicised administrative service filled with unscrupulous and partisan officers.

The 17th Amendment to the Constitution was passed in October 2001, just over one month before the December 5 general election that year. The government of the day, led by President Chandrika Kumaratunga was keen to get the legislation through and the JVP and UNP were equally eager to appear moralistic ahead of the key poll and so, with almost no debate, the Amendment was passed. However, legal experts counter that the 17th Amendment was one of the most hastily drafted pieces of legislation with an insufficient period for debate and suggested changes. As a result, several loopholes in the Amendment have plagued it for the last seven years. Loopholes politicians have been very quick to pounce on.

And this might very well be the reason that, although, almost all opposition parties are making a tremendous amount of noise about the non-implementation of the 17th Amendment, none of them have shown the will to go in for the kill and ensure that it is wholly adopted to ensure good governance. Not even the holier-than-thou JVP, which has all the clout to be able to bring the government to its knees on this issue, has shown a willingness to go the whole hog. It is well within the JVP’s power to compel the government to give in and appoint the CC. The JVP could threaten to quit the government (again), deprive it of numbers or join the opposition to bring a vote of ‘No Confidence’ based on this one issue. Instead, during the tussle for the minority party nominee, the JVP conducted a lengthy and tedious battle – a pointless one that, eventually, served only to delay the appointment of the CC and keep the government happy and comfortable as it goes about making key State sector appointments at will.

Obviously, the JVP doesn’t see the point in sticking out its neck. What if, one day, they were to enter the governing fray as a single party? How badly then would they want the 17th Amendment to be fully implemented? Obviously, they wouldn’t enjoy the loss of clout one little bit, when they find themselves in the driving seat.

As for the UNP, it has the political will for nothing. And, if any party is as bad as the ruling party for wanting to cling to power, it is the UNP. So, while they may rage about the audacity of the President and his men and threaten to take to the streets, it is more likely that deep inside, even UNPers would rather the status quo, sans CC, remains. It would only serve them well in the long term, when power might be at closer reach.

It does look like good governance is just way too much to hope for. The 17th Amendment and the independent commissions were established to undo some of the political misdeeds of the past and gradually de-politicise the State sector to restore it to its former glory. Unfortunately, with our rotten-to-the-core politicos, it is unlikely that dream, like so many others, will ever see the light of day.