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The 17th Amendment to the Constitution

The 17th Amendment to the Constitution -

                                    A Review of Some Institutions Under it

                                                                                               

 -  M. C. M.  Iqbal [1]

                                                                                       

Introduction

 

Since Sri Lanka became independent from British rule in 1948 there has been a steady decline in the efficiency of various organs of the State, especially in the public services, police and law enforcement institutions.   In fact, when the first political appointment was made to a high position in the public service in 1969[2] it “set in motion the disintegration of an independent, upright and incorruptible public service to be replaced by a sorry scheme of things in which top officials were seen scurrying after politicians for top jobs”.[3]  This became more and more acute as time went by and the malady spread like a cancer to every limb of the State.  By the end of the twentieth century, it was the common perception that the decline in the administration of the country was due to political interference. Successive governments have faced repeated accusations of not taking meaningful steps to deal with this malady, promptly and effectively. 

 

In an attempt to put things right the Government introduced a draft of a revised constitution in October, 1997 and later in August, 2000.  These drafts included specific provisions to deal with this matter.  But unfortunately, this did not become a reality until the latter part of 2001 when political developments precipitated a crisis.  With the Sri Lanka Muslim Congress (SLMC) withdrawing its support from the People’s Alliance (PA) government in June 2001, the PA ran the risk of losing its majority in Parliament.  Consequently, the PA thought it prudent to enter into an alliance with the Janatha Vimukthi Peramuna  (JVP).

 

The JVP, which then had 10 seats in the Parliament, signed a memorandum of understanding  (MOU) with the PA on 5th September 2001 and extended its support to the PA conditionally.  At the time of the signing of the MOU, a draft of a constitutional amendment agreed to by the opposition was ready. Among the terms of the MOU was an undertaking given by the PA to bring about a change in the Constitution to enable a Constitutional Council to be created to recommend persons to independent commissions such as the Public Service Commission, the Judicial Service Commission, the Elections Commission, the Police Commission, the Bribery Commission, the Human Rights Commission and other designated Commissions.  As it would only be possible for the President to appoint persons recommended by the Constitutional    Council to such bodies it was hoped that political interferences in the activities of these Commissions would be brought to an end.

 

The 17th Amendment to the Constitution, which incorporated the changes necessary to create the Constitutional Council and the independent commissions, was presented to Parliament in September 2001 and enacted in October 2001.  However, the Constitutional Council was constituted only in March 2002.

 

The Constitutional Council

This important piece of legislation, which brought about a drastic change in the Constitution, was rushed through the Parliament without adequate time being allowed for the public or even for members of Parliament to debate the issues concerned.  Yet, the fact remains that the 17th Amendment was the first measure to be passed by Parliament, which had a restrictive effect on the so for unfettered powers of the President of Sri Lanka. The President cannot appoint any person he/she chose to a Commission without the recommendation of the Constitutional Council (CC).[4]

 

One of the prime objectives in creating the Constitutional Council was to free the Commissions created by the 17th Amendment from political interference. However, this objective appears to be at variance with the very manner in which this Council has been constituted.[5]  The Speaker, the Prime Minister and the Leader of the Opposition are key members of the Constitutional Council.  They are all politicians and play a dominant role in the Council in recommending persons for appointment to the commissions. Besides, while any attempt to interfere with the work of the Public Service Commission (PSC), the Judicial Service Commission (JSC), the National Police Commission (NPC), etc. has been made a punishable offence,[6] any such attempt with the work of the Constitutional Council is neither prohibited nor punishable. This many create the impression that the Constitutional Council is open to external interferences.[7]

 

The Constitutional Council is one of the most important bodies created by the Constitution to ensure justice and fair play in the governance of the country, yet its members have no binding interest in the institution. At a critical moment such as when the Parliament stands dissolved, the Speaker, the Prime Minister and the Leader of the Opposition could not justifiably be expected to perform their functions in the CC diligently and judiciously when they would need to be busy electioneering to ensure their re-election.

 

It can also be argued that when Parliament is   dissolved there is no Speaker and no Leader of the Opposition, and that the Prime Minister exists only as the caretaker Prime Minister. Hence, they cannot legitimately continue to be members of the Constitutional Council at such a time. What is more, section 41E of the 17th Amendment states that it is the Speaker who is authorised to convene meetings of the Constitutional Council and he cannot legitimately summon a meeting while he is no longer Speaker, as Parliament would have ceased to exist at such time. 

 

Dr. B.S. Wijeweera, who has done extensive studies on the 17th Amendment and its implications, has discussed these issues at length and makes the following points.[8]

“In order to overcome this difficulty [meaning the situation where the Parliament stands dissolved] the 17th Amendment provides for the constitutional fiction that both the Speaker and the LO [Leader of the Opposition] are deemed to hold their respective offices till such time the proper persons are selected by a new Parliament. So, in this country we can have a Speaker [enjoying all the perks of office] without a Parliament and a LO with no Opposition to lead.”              

Section 41A of the 17th Amendment states that the Constitutional Council shall consist of the following: -[9]

a.                   The Prime Minister 

b.                  The Speaker

c.                   The Leader of the Opposition

d.                  A person appointed by the President

e.                   Five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition

f.                   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 belong and appointed by the President.

 

Those members from category (e) and (f) hold office for three years and cannot be appointed to such position for a second term. The President’s nominee also holds office for a period of three years but there is nothing to prevent such person being appointed for a second term.

 

After the promulgation of the 17th Amendment certain other duties and functions have been assigned to the Constitutional Council, as provided for by Article 41`F. They are as follows:

 

¬  Recommendation of Members to the Hon. Speaker to be appointed to the Parliamentary Scholarship Board under Sec. 5 (i) (a) of the Parliamentary Scholarship Board Act.

 

¬  Determining the criteria together with the Hon. Minister in charge of the subject of Finance, to be used in the selection of the Chairman and the four members under sub section (1) of section 4 (2) of the Welfare Benefits Act.

 

¬  Consideration and giving approval under Section 4(2) of the Welfare Benefits Act No.24 of 2002 when consulted by the Hon. Minister in charge of the subject of Finance, to the appointment of suitable persons to be appointed as the Chairman and the Members of the Welfare Benefits Board.

 

¬  Consideration and giving concurrence under Section 3(1) of the Public Utilities Commission Act No. 35 of 2002, to the recommendation of the Minister in charge of the subject of Policy Development and Implementation, for the appointment of the five members to the Public Utilities Commission of Sri Lanka.

 

¬  Consideration and giving concurrence under Section 8 (2) (C) of the Monetary Law (Chapter 323) Act as amended by the Monetary Law (Amendment) Act No. 32 of 2002, to the recommendation of the Minister in charge of the subject of Finance, for the appointment of three members to the Monetary Board of the Central Bank.

 

The Organisational Structure and Staff of the CC:

The Constitutional Council has a Secretary and an Assistant Secretary and is divided into the following main divisions for administrative purposes:

·         The Secretarial Division, which attends to matters pertaining to meetings of the Council and Committee Meetings. It also maintains a data bank.

 

·         The Administration Division, which attends to transport, housekeeping and maintenance of the garden.

 

·         The Finance Division, which attends to accounts and payments.

 

Article 41 D (2) states: “The Council may appoint such officers as it considers necessary for the discharge of its functions, on such terms and conditions as shall be determined by the Council”. The Council is served by a staff of five who have been released from Parliamentary Secretariat on secondment.  Assistance is obtained from the staff of the Parliament, as and when necessary.

 

Activities of the Council

The Constitutional Council has had to face a number of challenges since it was formed.  It successfully resisted attempts by the President in 2003 to make the Council change its procedure in making appointments to Commissions such as the Bribery Commission. This attempt was made to overcome an impasse in selecting a person to fill a vacancy in the Bribery Commission.

 

It is the practice of the Constitutional Council to pick persons from a database compiled for such purposes for membership to independent commissions. The candidates have been ranked according to their academic qualifications rather than by their experience in the relevant fields and on a structured marking scheme drawn up for such purpose. This system has its weaknesses, and some of the academics chosen have failed to live up to expectations as they have little practical experience of matters entrusted for their deliberations. Very senior and experienced retired public officers find their names low down on the list because they have not had time during their career to obtain academic distinctions and write books even though they excelled in their fields. Further, the strict measures adopted by the Constitutional Council in the selection procedure have deterred and discouraged prospective candidates for posts in these Commissions.[10]

 

In an article under the caption “CC says no to CBK’s requirement for recruitment changes,” Professor G.L Peiris is reported to have stated that “the procedure adopted by the CC required very meticulous and detailed examination of the records of individuals who were being considered for positions and was therefore undesirable”.[11] The point made by Prof. Peiris is debatable. Others may be inclined to the view that “meticulous and detailed examination of the records of individuals” is very necessary if these commission are not be corrupted. The problem relating to the Bribery Commission arose because the Constitutional Council superimposed its own marking scheme and interview procedure on specifications that had already been laid down by Law [Section 2 (2) (a) of the Bribery Commission Act]. The Bribery Commission should have been treated as an exception because Parliament had already spelt out the requirements for membership. 

 

The recommendation procedure continued even in 2004, in spite of the criticisms levelled against it, and was one reason for the nearly two-year delay in filling the vacancy in the Bribery Commission.  Mr. W.J.M. Lokubandara, the Speaker and Chairman of the Constitutional Council, had this to say in Parliament in connection with the dispute on the appointment of an Election Commissioner:[12]

The President does not accept the recommendations made by the CC and the CC cannot do anything or recommend another until the nominee declines.  According to the 17th Amendment to the Constitution, the President is not bound by law or moral right to respond to the CC as to why the appointment was not made.[13]

During the debate on this matter in Parliament the former Speaker of the Parliament            Mr. Joseph Michael Perera said: [14]

“ For two years the President has not made the appointment (recommended by the CC). We accept that 25% of the 17th Amendment is problematic and despite our promises we are unable to rectify it”.

 

That shows the dilemmas faced by the Constitutional Council in the performance of its functions and underscores the need for changes in the Constitution to remove such snags.

 

 Be that as it may, there was an attempt to add to the functions of the Constitutional Council by a joint Opposition move to submit amendments to the State Media Regulations.  These amendments would have enabled the Constitutional Council to make appointments to high posts in the Associated Newspapers of Ceylon Ltd; the Sri Lanka Rupavahini Corporation and the Sri Lanka Broadcasting Corporation.[15] This goes to show that in spite of the problems faced by the Constitutional Council, it is still looked upon as a body that could perform a useful function in making independent nominations to key institutions.   

 

The Bribery Commission

The official title of this Commission is the Commission to Investigate Allegations of Bribery or Corruption, but is popularly referred to as the Bribery Commission.  There cannot be good governance in a country where bribery and corruption are rampant. Therefore, this Commission has a key role to play in providing the climate for good governance.  The last Annual Report of this Commission set out its mission as follows:

The Mission of the Commission is to spearhead the fight against bribery and corruption and illegal accumulation of assets by public servants, through the execution of programmes of prevention, investigation and prosecution, in a just and fair manner, without fear or favour, within the framework of the rule of law.[16]  

The Bribery Commission is an institution created under the provisions of the Commission to Investigate Allegations of Bribery or Corruption Act No: 19 of 1994, which was passed unanimously by Parliament of that time.  Under the Act, the members of the Commission are appointed by the President on the recommendation of the Constitutional Council.[17]

 

The Composition, Staff, Functions & Powers of the Commission

The Bribery Commission is constituted by three members, two of whom have to be retired judges of the Superior Courts. The three Commissioners are assisted by a Director General whose duty it is to ensure that the orders of the Commission are carried out. The Director General is appointed by the President with the concurrence of the Commission. The Director General is assisted by a Director, Administration and a Deputy Director, Finance. There is also a Director of Investigations and a Deputy Director (Legal) to assist the Director General.  The investigators are police officers released for service in the Commission by the Police Department. There are 98 police officers working in this Commission.  However, the legal officers are permanent officers who have been recruited by and for the Commission. There are 17 of them in the Commission.[18]  The Secretary to the Commission reports directly to the Commission and is responsible for providing the administrative support to the Commission.  He avails of the services of the civilian staff provided to him by the Ministry of Public Administration.  All the members of staff are duty bound to take an oath of secrecy, a breach of which is punishable under section 22 of the Act. Some time in 2003 the President was reported to have directed a Commissioner to disclose details of the allegations of bribery against a former minister, which led to the Commissioner being taken to court, but he was discharged.  The Act does not stipulate who should prosecute in the event of a violation of the secrecy clause under section 17 of the Act. Section 22 makes contravention of secrecy an offence punishable by a Magistrate’s Court, but there is no mention in the Act of who should initiate such proceedings.

 

The main functions of the Commission as set out in the Bribery Commission Act No: 19 of 1994 are briefly as follows:

·         Prevention  - Harnessing public co-operation for the prevention of bribery.

·         Investigation – Investigations are launched only upon the receipt of a communication by the Commission under section 4 Part II of the Act, provided   however that such communication is –

(a)     genuine   and that

(b)    it discloses material upon which an investigation ought to be conducted.

·         Prosecution – Institution of actions and prosecution of such cases in the appropriate court where investigation had disclosed adequate evidence of an offence under the Bribery Act or the Declaration of Assets and Liabilities Law No: 1 of 1975.

·         Reporting  - Preparing reports in terms of Section 26 of the Bribery Commission Act and forwarding them to the President to be presented in Parliament.

 

The Bribery Commission Act vests all the powers relating to investigations and prosecutions with the Commission.  The members of the Commission could exercise these powers either sitting individually or together.  If a member exercises any such power sitting separately, such exercise shall be deemed to be an act of the Commission. However, the current Commission has the practice of submitting individual decisions of members to prosecute persons of the rank of a Head of Department and above to the full Board of the Commission for concurrence by a majority decision.[19] This practice was adopted to avoid allegations of partiality being levelled against one member or the other. It should be noted that the Bribery Commission is the only independent commission where individual members can act on their own with regard to complaints made to the Commission.  

 

Part II of the Act lays down the powers of the Commission.  They are as follows –

¬  Special investigative powers in special circumstances such as when there is a complaint against a Member of Parliament when it could commence the investigation without the prior approval of the speaker.[20]

 

¬  The Commission does not need to initiate criminal proceedings through the Attorney General, as was the case prior to the Bribery Commission Act No: 19 of 1994.

 

A separate Legal Division of the Commission attends to the function of instituting cases and prosecuting them in Courts. Thus, the Bribery Commission   enjoys much more power than any other law enforcement agency in the country.

 

Activities of the Commission

Following the filling of the vacancy in the Bribery Commission in July 2004, the Commission recommenced its activities and the institution of cases.  Soon thereafter, [according to a news report] the Commission reviewed 400 complaints against politicians, police officers and public servants[21]  and resumed investigations  after a gap of 18 months.  Of one hundred indictments to be filed, 18 were against Police Officers, 5 against Forest Officers, and 4 against officers of the Justice Ministry. Another news item in the same newspaper stated that investigation were pending relating to 1200 complaints,150 of which were against politicians and that it would take at least two years to complete these investigations. The Director General stated that 98 per cent of the complaints were anonymous.[22] He went on to state that to date the Commission had dealt with 30,000 cases “from a peon to a Secretary in the Public Service.” In 2003 it had handled 13,500 cases. He went on to state that the Commission had conducted 120 awareness programmes in 2004. These statistics are somewhat confusing, and cannot be verified until the annual report of the Commission for 2004 is published.

 

 The term of the Commission expired on 15th December 2004 and at the time of writing, the President had yet to appoint any successors.

 

The Independence of the Commission

As stated earlier, even the 17th Amendment   made specific provisions to ensure the independence of the commissions coming within its purview.  Yet, with regard to the Bribery Commission there is a need to make certain legal and structural changes for the Commission to be made really independent. There is a need for legal provisions enabling the Commission to recruit all the staff it needs. The dependence of this Commission on the Treasury for approval of the staff cadre and on Parliament for sanctioning its personnel emolument, has brought its independence into question. Such problems also exist for the other Commissions under the 17th Amendment.  Thus, the question arises as to how the Bribery Commission could be really independent when it has to depend on staff provided by the Ministry of Public Administration and the Police Department, as their loyalties may be divided.  Besides, these institutions can tighten their grip on the Bribery Commission by restricting the quantity and quality of the personnel made available. 

 

The absence of any provision in the Act to enable the Commission to continue to perform its functions even when there is a vacancy in its membership has caused an extended period of inactivity.  During the 18 months taken to fill the vacancy created by the death of Justice T. M. Abeyweera, the activities of the Commission were at a standstill. The ability of   other Commissions to continue their work without a break in such circumstances places the Bribery Commission in a significantly disadvantageous position.[23]

 

At a media conference held on 9th August 2004, the Director General of the Bribery Commission is reported to have stated that the Commission had urged the Law Commission to introduce some specific amendments to the Act to enable it to have absolute independence to investigate bribery or corruption.[24]  

 

There is no doubt that there is a need for the law to be amended in respect of the matters mentioned to enable the Commission to be truly independent and continue working without any hindrance or interruption even when there is a vacancy for a Commissioner. 

 

The Public Service Commission

 

Introduction

In 1948, when Sri Lanka became independent, it inherited highly centralized administrative structures, designed to suit the requirements of the British rulers whose prime concern was the collection of revenue and maintaining law and order.  Perhaps it was because the British realized the need to re-orient the public service to cater to the needs of the masses in independent Sri Lanka that the first Constitution, which was based on the recommendations of the Soulbury Commissioners, provided for a Public Service Commission (PSC), which was reasonably independent from the Executive.[25]   But the independence of this PSC was soon eroded due to political exigencies. Successive governments found the independence of the PSC to be a fetter on the power of the Executive, which wanted to have its own men in key positions of the public service and to protect their favourites from disciplinary action.  Examples of political appointments included the appointment of Mr. Hema Basnayake, who was then the Attorney General, to the post of Chief Justice, overlooking the rights of the most senior Judge of the Supreme Court for appointment to this post; the appointment of a civilian as Inspector General of Police; and the appointment of Mr. Ananda Tissa de Alwis, a politician, as a Permanent Secretary to a Ministry.  This trend continued until the adoption of the 1972 and 1978 Constitutions, which vested the power of appointments to senior positions in the public service in the Cabinet of Ministers.  Another step in that direction was taken with the Thirteenth Amendment to the Constitution when the Provincial Councils Act was passed in 1987.  These enactments provided for a Provincial Public Service   and Provincial Public Service Commissions appointed by the respective Governors of the Provinces. With the establishment of the Provincial Councils, a large slice of the public service went out of the hands of the “central” Public Service Commission.

 

Though the 1978 Constitution vested the powers of appointment, transfer, dismissal and disciplinary control of public officers in the Cabinet, the PSC continued to exist and the Constitution provided for the delegation of the powers of the Cabinet to the PSC in terms of Article 55(3).  The PSC in turn delegated some of its powers to the Secretaries of Ministries and Heads of Departments who owed a loyalty to the Government, which facilitated the politicalisation of the public service.

 

It is against this background that the 17th Amendment to the Constitution was adopted. The PSC was one of the Commissions that came under the purview of the 17th Amendment, perhaps with the hope that it would be able to insulate the public service from political influence and rescue it from the abyss into which it had fallen.

 

The Composition and Staff of the PSC

The PSC consists of nine members appointed by the President on the recommendation of the Constitutional Council.  At least three of them are persons who have had not less than fifteen years experience as a public officer. One of the nine members of the PSC is appointed by the President as the Chairman of the PSC on the recommendation of the Constitutional Council.

 

No person can be a member of the PSC if he is or becomes a Member of Parliament, Provincial Council or other local authority.[26]   On the other hand, if a person who is already holding a position in the public service becomes a member of the PSC he shall cease to hold such office. He will also be ineligible for any other position in the public or judicial service after he ceases to be a member of the PSC.[27]  A person appointed to the PSC shall hold office for a period of three years and is eligible for re-appointment for only one more term. One of the important provisions regarding the PSC is that it can continue to perform its functions even if there is a vacancy in its membership. 

 

The Secretary is the key member of the staff of the PSC, and has a large retinue of officers released to the PSC by the Ministry of Public Administration to assist him/her.  There is provision for the PSC to appoint Committees with a Secretary each to attend to specific matters for which the PSC can delegate its authority. It cannot, however, recruit persons to its own cadre without Treasury approval.  

 

The powers of the PSC 

Article 55(1) of the Constitution as amended by the 17th Amendment reads as follows: “The appointment, promotion, transfer, disciplinary control and dismissal of public officers shall be vested in the Commission.”  While on the face of this provision it would appear that the expectation of an independent Public Service Commission has become a reality, Article 55(3), which reads as follows, negates this expectation:

Notwithstanding the provisions of paragraph 1 of this Article, the appointment, promotion, transfer, disciplinary control and dismissal of all Heads of Departments shall vest in the Cabinet of Ministers, who shall exercise such powers after ascertaining the views of the Commission.

This shows that the Cabinet still retains powers over heads of departments and gives the impression that what was given with the right hand has been taken away with the left hand.  There is no use having an independent Public Service Commission if it cannot exercise control over Heads of Departments and protect them from political manoeuvres.  In other words, despite the provisions of Article 55(1), the public service continues to be in the grip of politicians who could manipulate it through heads of department.  If the words “with the concurrence of the Commission” had been used in Article 55(3) instead of “after ascertaining the views of the Commission”, this provision would have been of some significance. It is difficult to imagine that political interference has in fact ceased with the establishment of an independent Public Service Commission under the 17th Amendment.

 

 Administrative Appeals Tribunal

A significant feature of the 17th Amendment with regard to public service personnel matters is the creation of a body called the Administrative Appeals Tribunal with powers to hear appeals from decisions of the PSC and the Police Commission.[28]  Earlier, an aggrieved officer had only the option of going before the Supreme Court with a Fundamental Rights violation application. While many did benefit from this remedy, many other aggrieved officers did not have the financial means to go before the Supreme Court.  The Supreme Court on many occasions held that no arbitrary action could be permitted against any public officer, who is entitled to equal protection of the law.

 

The Administrative Appeals Tribunal was established under the provisions of the 17th Amendment by the Administrative Appeals Tribunal Act No: 4 of 2002.  It consists of three members appointed by the Judicial Services Commission, each of whom should have at least 20 years experience as a public officer or 10 years in the legal profession.  This is an appellate body against decisions of the PSC and the Police Commission.  No record of its activities is available, so no comment can be made on the performance of this Tribunal. It is hoped that in time to come such records will be made public at least through its annual reports. 

 

Expectations, Praxis and Prospects

As stated earlier, the 17th Amendment to the Constitution was passed at a time when the administration was in a state of crisis both due to inefficiency and widespread bribery and corruption.  The reputation of the public service was at a very low ebb and was criticized particularly by the JVP, which was then in the opposition.  When the need arose for the government to lean on the JVP to keep itself in power, the JVP made use of the opportunity to include the reform of the administrative system as a key issue in the MOU it signed with the Peoples Alliance. The 17th Amendment was the outcome of this union.  The JVP, not so much the PA, thought that the creation of independent institutions by the 17th Amendment would restore the administrative setup to a healthy state. The then opposition also hoped to curb the discretionary power of the President over appointments to these key institutions.

 

The 17th Amendment was passed on 3rd October 2001 but, as stated earlier, the appointment of the key institution   it created, namely, the Constitutional Council,   took place only on 22nd March 2002.[29]   The Constitutional Council was established in the hope that it would recommend appropriate persons to the bodies specified in the 17th Amendment and help in achieving good governance by recognizing the principles of equity, transparency, and the elimination of unfairness and invidious discrimination and arbitrariness.   The concluding lines in the First Report of the Constitutional Council[30] are worth mentioning here:

 

“The Seventeenth Amendment is an important step in the direction of good governance; but it should not cause a thrill of a delirious joy through the country, as though at last a sovereign medicine were found for all the diseases of the body politic. Formidable difficulties lie ahead for those who will serve in high office and as members of commissions, as well as for each and every citizen concerned with the welfare of our nation.  But let us not grow weary while doing good, for in due season we shall reap if we do not lose heart. Therefore, as we have opportunity, let us do good to all.”

The practical problems that some of the bodies created by the Constitutional Council had to face have already been discussed. Even though these bodies were expected to be independent, they depend to a large extent on funds provided by the Parliament based on estimates of expenditure submitted by the General Treasury.  Not all these bodies could raise funds on their own.  Therefore, it is well nigh impossible for these institutions to have the kind of equipment and the staff they consider necessary to perform effectively.  This factor seriously impedes the progress of these institutions.

 

Yet, undoubtedly the 17th Amendment is a step in the right direction.  Though the manner in which it became law stifled the chances of a full discussion of the issues and failed to create a flawless remedy to many of the ills the country faces in providing good governance to its citizens, it is nevertheless a reasonable first step in that direction and could be improved upon in time to come be.

 

It has also been pointed out that the 17th Amendment did not provide for gender representation in the various institutions created by it.[31]  Mr. Rukshana Nanayakkara says that “this reflects the ideological limitations of a Parliament where representation of women MPs is at a very low level”.

 

Be that as it may, the 17th Amendment was undoubtedly a significant step towards establishing a culture of good governance in the country.  It is hoped the various persons appointed to the respective institutions will live up to the expectations placed on them, and that governments of the future will identify the flaws in the system put in place by the 17th Amendment and make the necessary amendments to the Constitution to enable these institutions to be truly independent and fulfill the expectations of the people. 



[1] Consultant, Human Rights Commission of Sri Lanka.

[2] This refers to the appointment of Mr. Ananda Tissa de Alwis as Permanent Secretary to a Ministry in 1969.

[3] Editorial, Sunday Times, 17th February, 2002

[4] Subsequently the Supreme Court held that though a recommendation was mandatory, acting on such recommendation was not so. 

[5] This important point was raised by Mr. H.L de Silva, PC is an article published in the Sunday Island of 10th November 2002.

 

 

[6]  Vide Articles 61(c), 111L, 155F(4) of the 17th Amendment.

[7] This point was argued before the Supreme Court in the matter of the determination of the constitutionality of the aborted 18th Amendment to the Constitution (vide (2002) 3 SLR. pp. 71-84)

[8]  Vide Sunday Island of 21st March 2004 and 7th November 2004.

[9] Though the composition of the Constitutional Council has already been explained in Rukshana Nanayakkara’s article in the LST’s State of Human Rights Report of 2002, (vide pages 34 &35) it is repeated here for the convenience of the reader.

[10] Vide Sunday Times of 10.8.2003 at page 4

[11] Vide ibid at page 8 column 4.

[12] This is a translation of the words spoken in Sinhala by the Speaker. It is an amalgam of several interventions he made during a debate in Parliament on 10th September 2004. 

[13] Vide the article entitled ‘Constitutional Change for CC See Saw’ in the Daily Mirror of 11.9.2004 at page 4.

[14]  Vide ibid

[15]Vide Daily Mirror of 16.7.2004 – news report under the caption “Big say to CC in State Media – joint opposition to move amendments”.

[16] This quotation is from page vii of the Bribery Commission’s Annual Report for 2003, released in 2004.

[17] Act No: 19 of 1994 anticipated the establishment of the Constitutional Council and provided for appointment on the recommendation of the Constitutional Council until such time the appointments were to be made on the recommendation of   the Prime Minister as an interim measure.  

[18] Vide Sunday Leader of 9.5.2004 an article by Fredrica Jansz entitled “The Pipedream of Crushing Corruption”.

[19]  This is not a legal requirement.  

[20] Vide Annual Report of the Bribery Commission for year 2003 at page 8.

[21]  Vide The Sunday Times of 18.7.2004

[22] Vide Report on the interview with the Director General published in the Sunday Times of

     31.10.2004 at p. 11

[23] Articles 54(g)  [PSC], 104(3) [Elections], 111 E (4) [JSC], and 155 B (4) of the 17th Amendment to the Constitution provide as follows -  “The Commission shall have the power to act notwithstanding   any vacancy in the membership and no act or proceedings shall be or be deemed to be invalid by reason of any such vacancy or defect in the appointment of a member”. This is not so with the Bribery Commission.

[24] Vide Sunday Observer of 15.8.2004 a report by Anura Maltipe.

[25] Vide The Ceylon (Constitution) Order in Council of 1947   section 58 (as amended)

[26] Vide Article 54(2) of the 17th Amendment

[27] ibid Article 54(3) 

[28]  Vide article 155 L of the 17th Amendment.

 

[29] Vide Parliamentary series No. 14 of the filth Parliament of Sri Lanka, First Report of the Constitutional Council, presented by the Hon. M. Joseph Michael Perera, Speaker.

[30] Ibid at page 53

[31] Vide   Law & Society Trust’s State of Human Rights Report for 2002,  “The 17th Amendment to the Constitution” by Rukshana Nanayakkara, at page 59.

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