The Island: 10/03/2006" by I. P. C. Mendis (Retd. SLAS)
On March 01 2006, a writer referred to the serious constitutional crisis facing the country due to the non-operation of the 17th Amendment to the Constitution and the woeful lack of responsibility, commitment and initiative on the part of those legislators who seek to represent the people in the sacred task of democratic governance on the basis enunciated by the great Abraham Lincoln.
The country is now governed by the people, for the people and on behalf of the people. The country is now aware, or at least should be aware, that the Constitutional Council (CC) and the independent commissions for Police and the Public Service Commission are dysfunctional while the Judicial Service Commission by reason of the resignation of two of its three members, stands without a quorum. Nothing can be done to revive these Commissions unless the CC itself is given oxygen in the first instance. The parent body (CC) is effectively paralysed by a piece of legislation, the terminology, interpretation and provisions of which are so involuted that one cannot resist the evil thought that the whole 17th Amendment has had its own agenda, despite the initial enthusiasm to cater to the demand of the people for a just and equitable society.
Such an evil thought is supported by the existing universal political indifference. Yet, all are aware of this Catch 22 situation! The stalemate has enough power to generate a spontaneous reaction by the people if those who are ever ready to organise demonstrations at the drop of a hat, resort to strikes and go-slows, sick notes, so-called fasts unto death and threats at occasional immolation, were half as ready to take this cause of the non-operation of the 17th Amendment.
Appointments, promotions, transfers, discipline administrative and appellate functions are all at stake and there are extra-constitutional steps being contemplated in the absence of an alternative, to fill the void created by the inoperative institutions, all of which affect the public services and trade unions. The people themselves are affected through the immobilisation of the National Police Commission, the PSC and the JSC.
There are none at Lipton Circus, Fort Railway Station or on the Galle Road from Dondra to Colombo to espouse the cause.
The diffident opposition and independent parties need to act fast with the government to breathe life into the good intentions and spirit of the Amendment. The 17th Amendment is as at present, a 'dead letter'. The CC, in any case, even if revived cannot function in the event of a vacancy occurring, which will take a month of Sundays to fill.
The whole Amendment is basically flawed. The government is helpless with the unworkable provisions of this 'pearl of great price' which is tottering in its keens after a short life-span of less than 05 years. The cracks in its literary architecture are manifest, inter alia, in total failure to appoint an Elections Commission as envisaged in Article 103(1).
These submissions by me are designed to signal a Red Alert to the country and its people of the dangers that lie ahead in permitting this matter to drift exposing the democratic system to erosion. There can be no extra constitutional steps without a backlash in Courts and elsewhere, however much it is argued as being necessary to get over the stalemate. The suspension of any of the provisions of the Constitution is permissible only where Public Security is involved. The situations are dealt with in articles 154 J to Article 154 N of the Constitution. It is, therefore, not in the public interest or in the interests of the government to let the issue drift into limbo and to display indifference to the cause. Chaos is staring us in the face!
Elections Commission
Quite apart from the predicament the Elections Commissioner, Dayananda Dissanayake, finds himself in, the present situation is heavily laden with various possibilities that would be inimical to the interests of the Nation and good governance. Article 26 (2) of the Amendment provides as follows:
"The person holding office as the Commissioner of Elections on the day immediately preceding the date of the commencement of the Act, shall continue to exercise and perform the powers and functions of the office of Commissioner of Elections as were vested in him immediately prior to the commencement of this Act, and of the Elections Commission, until an Election Commission is constituted in terms of Article 103, and shall, from and after the date on which the Election Commission is so constituted, cease to hold office as the Commissioner of Elections."
The provision is totally subjective vis-a-vis the Elections Commissioner, Dayananda Dissanayake, who has absolutely no option but to continue the work he had been performing prior to the commencement of the Amendment. It was in terms of this provision that the Supreme Court ruled that it was unable to help him to retire. It would indeed be logical to conclude that this rigid provision leaves no quarter for anyone else to act in the post of Elections Commissioner nor be appointed permanently until the establishment of the Elections Commission. If not, he would have been permitted to retire.
A crucial issue arises as to what would happen if the person holding the post of Elections Commissioner is so incapacitated that he cannot perform his functions anymore or God forbid! (with all my prayers for good health and long life of the present incumbent I mention this only for argument sake only!)
The result: no elections, no referendum, or nothing in the absence of an Elections Commission. It is a far cry from the 1994 situation when Mr. Dissanayake was hospitalised and Mr. Dassanayake from the SAAS was entrusted with the task of conducting the general elections. Or more specifically considering the impending local government elections - are we not "playing roulette" depending too much on Providence or the Stars?
What if there is no one to conduct the elections or certify the results? These are questions which need to be addressed notwithstanding human decency sometimes compelling one to desist from openly focusing them lest it hurts personally.
I crave the indulgence of Mr. Dissanayake to bear with me in the name of his own plea made to President Rajapakse. (In fact, the Court of Appeal had reportedly dismissed recently a plaint against rejection of nominations on the ground that the appeal should have been against the Elections Commission (non-existent).
Such is the magnitude of the confusion. In the event of such a situation, the constitutional crisis will be complete and it will be fertile ground for subversive forces, coup karayas, and ambitious individuals backed by foreign vested interests and some NGOs to fish in troubled waters.
Revocation of the 17th Amendment
The 17th Amendment is unworkable - let's face it. In the circumstances, until such time as a revision of the entire provisions and procedures laid down in the Amendment is undertaken, there appears to be no viable alternative to restoring the status quo ante by the revocation of the 17th Amendment forthwith by harnessing a two-third majority.
No right-thinking person who has the future of the country at heart could possibly oppose the move. It is no doubt an emergency move. It will instil self-respect to the government and the country and more importantly preserve democracy.
The government need not wait till the county is in a dilemma giving more ammunition and support to inimical forces which are waiting in the wings to cash in on such opportunities to de-stabilise and to bring the government into disrepute internationally and locally. Indeed, a passport on a platter for Anarchy!
Let the coolness of the "DEW" that drips on the heads in the ministry of Constitutional Affairs not lull them into a false sense of security and complacency but jerk them into the reality of an impending inferno.
On March 01 2006, a writer referred to the serious constitutional crisis facing the country due to the non-operation of the 17th Amendment to the Constitution and the woeful lack of responsibility, commitment and initiative on the part of those legislators who seek to represent the people in the sacred task of democratic governance on the basis enunciated by the great Abraham Lincoln.
The country is now governed by the people, for the people and on behalf of the people. The country is now aware, or at least should be aware, that the Constitutional Council (CC) and the independent commissions for Police and the Public Service Commission are dysfunctional while the Judicial Service Commission by reason of the resignation of two of its three members, stands without a quorum. Nothing can be done to revive these Commissions unless the CC itself is given oxygen in the first instance. The parent body (CC) is effectively paralysed by a piece of legislation, the terminology, interpretation and provisions of which are so involuted that one cannot resist the evil thought that the whole 17th Amendment has had its own agenda, despite the initial enthusiasm to cater to the demand of the people for a just and equitable society.
Such an evil thought is supported by the existing universal political indifference. Yet, all are aware of this Catch 22 situation! The stalemate has enough power to generate a spontaneous reaction by the people if those who are ever ready to organise demonstrations at the drop of a hat, resort to strikes and go-slows, sick notes, so-called fasts unto death and threats at occasional immolation, were half as ready to take this cause of the non-operation of the 17th Amendment.
Appointments, promotions, transfers, discipline administrative and appellate functions are all at stake and there are extra-constitutional steps being contemplated in the absence of an alternative, to fill the void created by the inoperative institutions, all of which affect the public services and trade unions. The people themselves are affected through the immobilisation of the National Police Commission, the PSC and the JSC.
There are none at Lipton Circus, Fort Railway Station or on the Galle Road from Dondra to Colombo to espouse the cause.
The diffident opposition and independent parties need to act fast with the government to breathe life into the good intentions and spirit of the Amendment. The 17th Amendment is as at present, a 'dead letter'. The CC, in any case, even if revived cannot function in the event of a vacancy occurring, which will take a month of Sundays to fill.
The whole Amendment is basically flawed. The government is helpless with the unworkable provisions of this 'pearl of great price' which is tottering in its keens after a short life-span of less than 05 years. The cracks in its literary architecture are manifest, inter alia, in total failure to appoint an Elections Commission as envisaged in Article 103(1).
These submissions by me are designed to signal a Red Alert to the country and its people of the dangers that lie ahead in permitting this matter to drift exposing the democratic system to erosion. There can be no extra constitutional steps without a backlash in Courts and elsewhere, however much it is argued as being necessary to get over the stalemate. The suspension of any of the provisions of the Constitution is permissible only where Public Security is involved. The situations are dealt with in articles 154 J to Article 154 N of the Constitution. It is, therefore, not in the public interest or in the interests of the government to let the issue drift into limbo and to display indifference to the cause. Chaos is staring us in the face!
Elections Commission
Quite apart from the predicament the Elections Commissioner, Dayananda Dissanayake, finds himself in, the present situation is heavily laden with various possibilities that would be inimical to the interests of the Nation and good governance. Article 26 (2) of the Amendment provides as follows:
"The person holding office as the Commissioner of Elections on the day immediately preceding the date of the commencement of the Act, shall continue to exercise and perform the powers and functions of the office of Commissioner of Elections as were vested in him immediately prior to the commencement of this Act, and of the Elections Commission, until an Election Commission is constituted in terms of Article 103, and shall, from and after the date on which the Election Commission is so constituted, cease to hold office as the Commissioner of Elections."
The provision is totally subjective vis-a-vis the Elections Commissioner, Dayananda Dissanayake, who has absolutely no option but to continue the work he had been performing prior to the commencement of the Amendment. It was in terms of this provision that the Supreme Court ruled that it was unable to help him to retire. It would indeed be logical to conclude that this rigid provision leaves no quarter for anyone else to act in the post of Elections Commissioner nor be appointed permanently until the establishment of the Elections Commission. If not, he would have been permitted to retire.
A crucial issue arises as to what would happen if the person holding the post of Elections Commissioner is so incapacitated that he cannot perform his functions anymore or God forbid! (with all my prayers for good health and long life of the present incumbent I mention this only for argument sake only!)
The result: no elections, no referendum, or nothing in the absence of an Elections Commission. It is a far cry from the 1994 situation when Mr. Dissanayake was hospitalised and Mr. Dassanayake from the SAAS was entrusted with the task of conducting the general elections. Or more specifically considering the impending local government elections - are we not "playing roulette" depending too much on Providence or the Stars?
What if there is no one to conduct the elections or certify the results? These are questions which need to be addressed notwithstanding human decency sometimes compelling one to desist from openly focusing them lest it hurts personally.
I crave the indulgence of Mr. Dissanayake to bear with me in the name of his own plea made to President Rajapakse. (In fact, the Court of Appeal had reportedly dismissed recently a plaint against rejection of nominations on the ground that the appeal should have been against the Elections Commission (non-existent).
Such is the magnitude of the confusion. In the event of such a situation, the constitutional crisis will be complete and it will be fertile ground for subversive forces, coup karayas, and ambitious individuals backed by foreign vested interests and some NGOs to fish in troubled waters.
Revocation of the 17th Amendment
The 17th Amendment is unworkable - let's face it. In the circumstances, until such time as a revision of the entire provisions and procedures laid down in the Amendment is undertaken, there appears to be no viable alternative to restoring the status quo ante by the revocation of the 17th Amendment forthwith by harnessing a two-third majority.
No right-thinking person who has the future of the country at heart could possibly oppose the move. It is no doubt an emergency move. It will instil self-respect to the government and the country and more importantly preserve democracy.
The government need not wait till the county is in a dilemma giving more ammunition and support to inimical forces which are waiting in the wings to cash in on such opportunities to de-stabilise and to bring the government into disrepute internationally and locally. Indeed, a passport on a platter for Anarchy!
Let the coolness of the "DEW" that drips on the heads in the ministry of Constitutional Affairs not lull them into a false sense of security and complacency but jerk them into the reality of an impending inferno.
