Although there are not so many supporters anymore for the President’s appointments to the courts and several commissions, in contravention of the Constitution, there are still a few apologists.
One such is Dr. Jinadasa Ilangasinghe, who in an article published in the Island on June 11, 2006 entitled Parliamentarians’ Mandate and the Constitutional Council, puts up rather a comic argument in defense of the President’s actions. According to Dr. Ilangasinghe, if the President appointed the five current nominations to the Constitutional Council (CC) made by the Prime Minister and the leader of the opposition the President would have violated the Constitution, as the one person that should be nominated by the minority parties had not been nominated. “This lacuna has created a sort of dead-lock in the progressive way towards the setting up of this council,” he said. However, he thinks that the President’s appointments, without the selection done by the CC, which is completely contrary to the Constitution, is still constitutional and legal.
The essence of the 17th Amendment is the separation of the power of selection and the power of appointment into positions mentioned in that Amendment. The Parliament took away from the President the power of selection, which the President had under the 1978 Constitution before it was amended. It was a deliberate act of Parliament based on the consensus of all parties that the President’s use of the power of selection had led to “politicisation” and abuse of power. That had been addressed by placing the power of selection in the hands of persons who did not wield the power of the state and, whose impartiality and integrity could be relied upon in making merit the sole basis for selection into these positions.
When the Bill on this Constitutional amendment was taken up before the Supreme Court in September 2001, the court stated that:
“the Bill in its entirety has the objective of altering the legal regime for the appointment regulation of service and disciplinary control of public officers—-including judges and judicial officers. It places a restriction on the discretion now vested in the President and the Cabinet of Ministers in relation to these matters and subjects the exercise of this discretion to the recommendation or approval of the new body to be established known as the Constitutional Council.”
What the learned apologist for the President’s contravention of the Constitution does not explain is as to how the President can get back a power that has been taken away by Parliament quite deliberately. In passing the 17th Amendment the Parliament recognised the politicisation of the important institutions in the country as a source of instability and anarchy. Parliament, using its supremacy curtailed the power of the president.
Therefore the act by the President in making appointments is a direct onslaught on . The foundation on which a Constitution rests is . If Dr. Ilangasinghe has any doubts on that matter all he needs to do is to read A.V. Dicey. Every first year student of law learns the principles of constitutionalism as enunciated by Dicey. AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, available in any law library, has all the explanations of this principle. The President of Sri Lanka is a creature created by the Parliament of the country and he cannot abuse the very Constitution which has given him this power. He has acted contrary to . According to the Constitution, a contravention of the Constitution is a ground on which the President can be impeached.
The Parliament, in placing the duty of selection of persons in the hands of the CC created an advance in the Constitutional setup in Sri Lanka. The aim pursued by the amendment was to make merit the sole basis for higher appointments. Making merit the basis for holding higher posts was needed in order to pull the country back from the situation of institutional collapse that it was facing. Persons appointed on the basis of their own merit were needed in order to ensure that all the persons that they in turn select will also be selected on the same basis of merit. In the same way the CC will scrutinise the background of the persons who will be appointed to these high posts, persons so appointed will in turn scrutinise the background of their subordinates as a precondition before selection.
When the selection process is usurped by the President there is no way for the public to known whether a person selected is suitable to hold such a post. Scrutiny by an independent body may reveal some skeletons in the cupboards of such persons selected to these high offices.
It was just a short while ago that two Supreme Court judges resigned on the basis that on matters of conscience they could not work with the remaining member of the Judicial Service Commission, who is the Chief Justice. The country has reached a point when persons who hold such high posts, as the two judges, are having problems of conscience in dealing with matters of appointment, transfer and disciplinary control of judges of lower courts. How many such problems might there be in other areas of the administration of the county. Indeed, the problems of the police service are admitted by high ranking officers of the force itself.
From the press we also know that the persons nominated to the Constitutional Council are persons of high credibility. These include names such as the former Supreme Court judge, C. Vigneswaran and the former chairman of the National Police Commission, Ranjith Abeysuriya. These and others could have made a contribution to drag the country out of the mess that it has been placed in by the abuse of authority and politicisation. The question then, is as to whether there exists a conspiracy to prevent such persons from making their contributions to pull the country out of its darkest depth. Informed sources do speak about some persons, holding high office, not wanting the re-emergence of the intervention and scrutiny of the Constitutional Council.
Thus, the 17th Amendment crisis involves such issues as an onslaught on and the extreme resistance of some powerful persons who do not want the country to be pulled out of its current spiralling descent.
