This Issue publishes a document that had been requested for by several readers of the Review; namely the Interim Report of the Select Committee of Parliament on the 17th Amendment to the Constitution, datelined August 9th 2007.

Several recommendations of this Select Committee are quite commendatory as for example, its proposal that the ten member Constitutional Council, (the body established by the 17th Amendment to vet nominations to the constitutional commissions and appointment to judicial office as well as to public office), should be legislatively enabled to function with six members rather than with all ten members.

So to is the recommendation that the appointments may not be made altogether at once by the President and that the Sinhala version of the 17th Amendment should be further amended to fall in line with the English text by using the word ‘or’ in Article 41A(5). The President is further called upon to make the appointments within fourteen days of the receipt of the relevant communication of nomination instead of the current indefinite time frame. The Speaker is vested with the specific duty to ensure that the needed nominations are, in fact, made.

As should be recalled, it was the inability on the part of the political parties ‘not belonging to the party of the Prime Minister or the Leader of the Opposition’ to agree by majority vote on the remaining nomination to the CC that led to the lapsing of the CC since the terms of office of six appointed members expired in March 2005. While such a deadlock may have been resolved through parliamentary consensus in any decently functioning political system or, at the very least, resolved by sensitive judicial intervention given the paramount importance of the 17th Amendment to the constitutional process of governance, this was not the case in Sri Lanka.

Instead, blatantly problematic appointments were made by Presidential fiat to the several constitutional commissions established by the 17th Amendment such as the Human Rights Commission of Sri Lanka and the National Police Commission even though the CC was not in place and was consequently unable to approve the nominations in question. This status quo has remained for well over two and a half years thus exemplifying the perfidy of politicians in regard to the unconscionable negation of a constitutional amendment in which much public trust was reposed.

Thus, though the laborious process of a parliamentary select committee may have been avoided in order to set the situation to rights, the recommendations in the Select Committee’s Interim Report (despite with a limited focus only on the procedural problems affecting the 17th Amendment) is at least a limited improvement
The Committee has suggested that successive acting appointments should also receive the CC approval and has stipulated that the CC makes not one nomination to the post of Chairman of the constitutional commissions but three, out of which the President ‘may’ appoint anyone of the persons so nominated. Appointments to the Commissions “shall” be made within two weeks of the receipt of the nominations.

Its insistence that decisions of the CC may be subject only to the fundamental rights jurisdiction of the Supreme Court appears however to be superfluous given that Article 41H already specifies this and also given recent judicial precedent on this question.

Further, the Committee’s view that the power to make the remaining nomination vested in political parties ‘not belonging to the party of the Prime Minister or the Leader of the Opposition’ should be decided, not on whether that party was part of the government or opposition at the time of election but rather on the question as to whether they function independently in Parliament, is bound to be contested by some segments of public opinion on the basis that this interpretation lends itself to expedient political maneuvering within Parliament.

Apart from these differences of opinion, what should however not be forgotten is that the 17th Amendment became dysfunctional not as a result of inadequacy of legislative language but rather due to the clear absence of political will both in Parliament and in the office of the Presidency to allow this constitutional amendment to be properly implemented.

The paralyzing effect that the negation of the 17th Amendment has had on the constitutional commissions is discussed in the subsequent paper that the Review publishes regarding the functioning of the National Police Commission. The question arises then as to whether the 17th Amendment was deliberately crippled in order to politicize the constitution of the constitutional commissions, some of which have direct impact on monitoring the human rights situation in the country. These are uncomfortable questions that nevertheless become important due to the reality that confronts us in Sri Lanka today.

If so, then the question arises as to why this bypassing of the constitutional process has not been taken up as a main issue of contention by the Opposition parties? In this respect, the blame lies almost equally on politicians on both sides of the floor in the House. We are also entitled to question as to why the recommendations in the interim report of the Select Committee of Parliament are not placed before the House and implemented forthwith into law? Further delay in this regard should be subjected to stringent public criticism.

The concluding part of the Review examines the balance sought to be struck between rights of individuals and the security of the State in the context of the United Kingdom’s ‘fight against terror’ in a manner that is also pertinent to Sri Lanka.

Thus;

It is often argued that human rights cannot be enjoyed in the same way as they have been enjoyed in the past. Nonetheless, the extent to which change must occur to effectively fight terrorism whilst also safeguarding the rights of citizens is also a matter for debate.

This paper also examines the concept of deterrence in international relations in the wake of the 2003 Iraq war.

Kishali Pinto Jayawardena