In spite of the serious and inherent limitations of the 17th Amendment, the fact that a Constitutional Council and a system of independent commissions have been enacted may be considered a very important step.
The limitations of the entire process were good. It was, it may be said, a constitutional amendment that was passed without a proper discussion of the matter among the people. The people had just heard about a system of independent commissions but had no understanding about them, and did not know what they really were. No action was taken to help them understand, either. The draft was not even published among the people before it was sent to the Supreme Court to consider its constitutionality. It may be considered that the constitutional amendment was least deliberated on by the Supreme Court. It was not placed before a special and broad panel of judges appointed for the purpose. The matter was merely considered before a three member panel of judges which had been appointed to inquire into other matters. The worst aspect of this constitutional amendment was that it was debated in parliament and passed without a final draft being tabled in Parliament. This may be the first instance in the history of constitutional amendments where a constitution was amended without a final draft being tabled in Parliament. The contribution of the main opposition party, the UNP, to this process of constitutional amendment, too, was extremely unsatisfactory. The first draft submitted by that party for the 17th Amendment, too, was an extremely weak one which did not go beyond the proposals for constitutional amendments which the PA presented at the parliamentary election campaign. The draft presented by the Association of Professional Organisations was better and the UNP, after the severe criticisms which its own draft was subjected to, submitted a new one based on that of the Association of Professional Organisations. It was a carbon copy of the draft of the Association of Professional Organisations except for the section on the composition of the Constitutional Council. That itself had many shortcomings but, in a context in which such matters are not discussed at expert level, the shortcomings and mistakes were not corrected.
The government based its draft on the one tabled by the UNP and, at the same time, cleverly used the mistakes and the shortcomings in the UNP’s draft for its own advantage. For instance, although it would be essential to vest in the Constitutional Council the right to re-appoint the heads and members of the institutions which are functioning in addition to those of the four new commissions, the UNP’s draft did not include provision for it and, because that exclusion would permit the present government to retain further its henchmen, the government too refrained from including provisions for the purpose in its own draft too.
The biggest mistake which the UNP made in the process of framing this Constitutional amendment was that it was not alert about the draft that the government was preparing on the basis of the UNP’s draft. Surprisingly the UNP did not even send to the Supreme Court a panel of lawyers with a profound understanding of the subject at the time the government was sending its draft to be examined by the Supreme Court. It was an equally serious mistake that the UNP as a party with the greatest experience in the field of parliamentary affairs helped the government to take up the 17th Amendment for debate and to get it passed without a finalised draft. Although the UNP should have helped this amendment to be passed after obviating the shortcomings, that party had an obligation to have the final draft prepared and to postpone the process of tabling it in Parliament and getting it passed, if no finalised draft was available.
It was due to the intervention of the JVP that it became possible to get such a programme of reforms enacted even in a somewhat debilitated state.
Some honour is due to that party on that score. However, the role played by that party in this process of constitutional amendment was not mature or excellent. The JVP tried to get the programme of constitutional amendment passed somehow, but does not appear to have paid proper attention to the need to ensure the qualitative value that should have been there when those proposals were being made into law. Perhaps the JVP agreed even to proposals that turn the process of reform to a state of debility in order to get the government’s agreement. The JVP even drifted to a position of asking whether it was wrong to have a representative of the President who had been elected, if the Prime Minister and the leader of the Opposition were to have representation in the Constitutional Council.
In all countries where a democratic political system prevails, the head of government is elected directly or indirectly. However, due to the very reason that the head of government is the chief executive, in most countries the right of the head of government to appoint the heads and members of institutions whose independence should be protected is restricted. It is the people who elect the President of the United States. However, the President must get the approval of the Congress in selecting and appointing the Congress are subjected to a thorough examination, and there are many instances when the Congress rejects the names recommended by the President. In the proposed system of the Constitutional Council, it is the Constitutional Council which has the right to recommend the chiefs and the members of the institutions that should have an independent status. For this reason the chief executive should not be permitted to have a hand in the matter. The JVP either because of its lack of understanding in such matters, or because of its enthusiasm to deliver what it had promised, or because of its desire to please the President and the government, followed a policy of distorting the essence of the constitutional amendment instead of defending that essence. The JVP’s policy in regard to the Judicial Service Commission too, was similar. Dr. Jayampathy Wickremaratne who was the author of the draft, represented the government on the one hand, and represented his friend, the Chief Justice, as his defender on the other hand. The J.V.P. in regard to the Chief Justice followed a lenient policy. When Dr. Wickremaratne’s intention was to leave out of the Judicial Service Commission such senior judges as Mark Fernando and Dr. A.R. Amerasinghe and to keep it in a position which the Chief Justice would control, the J.V.P. approved it.
In the transaction for a probationary administration the role played by the JVP did not appear to be mature or impartial. If the JVP informed the Opposition about that programme and sought their support to it and moved unilaterally towards a transaction with the government, then the JVP would have earned the respect of impartial people of all parties. When the JVP entered into a probationary programme with the government and stopped all criticism, and drifted to a policy of severe attack on opposition parties, the JVP gained an image of a supporter of a tottering government instead of an image of impartiality in relation to opposition parties.
Only the government appears to have acted in an extremely able, subtle and shrewd manner in this whole process. The government’s aim appears to have been to grant the political reforms demanded, while keeping the Constitutional Council which may be considered the heart of reform process, in a position in which the government can control it in a subtle manner, protecting the Chief Justice who has now become the chief political protector of the government and keeping in a position in a position in which it can control at the future elections, the ITN, ‘Lak Handa’ and ‘Lake House’ are in a position in which the government cannot control. Whether it is really so, is due to be tested soon.