Unconstitutionality of the Seventeenth Amendment to the Constitution

E.P. WICKREMASEKERA, Attorney-at-law

Continued from March 24

THE method of surveillance over executive performance envisaged by the Constitution is through Parliamentary Committees established according to Standing Orders and Parliamentary Powers and Privileges Act.

Most of the matters dealt with in the 17th Amendment are the subject matter of normal laws such as the election law and the normal procedures prevailing in Govt. Departments for disciplinary control over officials, and by rules regarding transfers, promotions etc.

The view is irresistible that Parliament, having failed in its duty of enacting appropriate laws, has resorted to this aberration of the Constitution, to gain a handle to interfere with the executive functions, for the CC has only to get a member or two of the Commissions to resign to immobilize the entire executive arm of the government.

Art. 104A (a) and (b) grant immunity to acts of the Commission placing them beyond the reach of judicial review when such immunity was denied in the case of the 18th Amendment.

Art. 104B (4) the Commission is given the power to prohibit the use of movable or immovable property of the State in circumstances described in sub-paragraphs (i) and (ii) i.e. for the benefit of any or for the disadvantage of any candidate.

However, non-compliance with such order is not made an offence but only non performance of a 'duty', and no penalty is imposed for non-compliance or non-performance (The Commission would have to consult legal oracles to ascertain what remedies are available).

Obviously the Commission has no power to seize the property in the event of continued breach.

The most glaring omission is that the candidate or candidates who would gain by the violations would not suffer any disadvantage.

Anyone would expect that such abuses should constitute an election malpractice or a factor which should weigh in disqualifying an offending candidate for election or if elected his election being declared null and void. Thus article 104B (4) is vague and toothless provision.

On the other hand in the case of broadcasting and publishing Art. 104B (5) empowers the Commission to issue from time to time guidelines to ensure a free and fair election. Again only a duty is imposed on the state broadcasting organizations only to comply with the guidelines.

The Commission is vested with power to make orders but no sanctions are imposed for violations. Laws without sanctions are writ on water.

In the event of non-compliance the Commission is authorized to close down only the SLBC and the SL Rupavahini Corporation totally through a Competent Authority, while no such sanction is imposed on private broadcasting media, a case of gross discrimination and violation of the fundamental right of freedom of expression.

Thus the Commission becomes the law maker, executer, judge and punishing authority all rolled into one. Such seizure constitutes a violation of the fundamental right of freedom of expression, of the right of the contestants to have their views communicated to the voters.

It also constitutes a violation of the F/R of equality before the law as the law does not impose such drastic sanctions on the print media which is the more permanent communication media. One may also question whether guidelines acquire the force of law.

In the view of eminent authorities such as Hart, laws should be certain and clearly defined for a branch thereof to attract punishment.

Guidelines may be appropriate where compliance is sought to be secured by persuasion rather than by sanctions.

The term 'impinge' used in the above section is most unfortunate to say the least. During election time all broadcasts and publications by candidates impinge on the election and in fact are meant to be so.

To compound matters further sub-section (d) states that parliament may by law provide for the powers and functions of the Competent Authority appointed under sub-paragraph (c). What Parliament should do and has not done is to enact a proper election law. The Commission should have power to implement the law as under Art. 104B(2).

All the provisions in sub-paragraphs (4)(a) to (c) are matters for enactment under a properly drafted election law. Such a law would have the added advantage that it could be amended as changing circumstances require, by a simple majority without amendment of the constitution.

It is an observable principle in most Constitutions that such details are left to the ordinary law. To illustrate this further, we may cite the glaring instance of the poster war.

The government spends nearly 14 million rupees to remove the posters adorning the walls and every conceivable place during election time.

The poster war is the fount of most election violence. In place of the present lawless state a proper election law could have provided for display by each candidate a poster of specified size and specified contents such as a photograph of the candidate, the symbol, a limited number of words conveying the summary of the candidate;'s manifesto or message, to be posted at approved places such as the Divisional Secretariat, the Elections offices, the post office, grama sevaka office, markets, bus stands and such other places approved by the Commission, and in the media. Such a law would control undue expenditure and more equitable.

The only improvement on the hitherto existing laws would have been for nomination of the relevant officials to be made by the President in consultation with the Prime Minister and the Leader of the Opposition and the Speaker, and approved by the relevant Parliamentary committee, which would consist of representatives of all political parties in Parliament.

The provisions with regard to the Judicial Service Commission is mostly a repetition of the pre-existing law except with regard to appointment of the Chief Justice and the Supreme Court, the President of the Court of Appeal and other officials in part II of the Schedule.

If one were to compare the procedure for similar appointments in other jurisdictions. In the USA, nominations are made by the President and approved by the relevant Congress Committee. Many a nomination proposed by the President has been disallowed by the Congress Committee.

The Reagan nomination of Robert Bork to replace a retiring SC judge with the object of strengthening conservative group of the then Warren Court was rejected by the Congress Committee.

In India the Elections Commission is appointed by the President in consultation with the Prime Minister. It is well known that the Commission has worked quite independently and efficiently without any Constitutional Council contraption.

The Constitutions of several European countries such as Russia and Germany provide for a Constitutional Court, but hardly do we find this newfangled freak called the Constitutional Council brought forth under the 17th Amendment.

In enacting amendments to the Constitution it is imperative that the legislature should conform to the architectural configuration of the existing Constitution wherein the PSC and the JSC functioned quite independently. Their independence was secured by inbuilt provisions such as Art. 107 and Art. 60 respectively.

Any additional safeguards could have been provided by amending or new articles. The independence of the Elections Commission could have been similarly secured and proper election laws enacted.

The emasculation of the Police powers by the newly established Police Commission would cause serious dislocations in law enforcement, with no one particulary responsible for consequences. It is strange that the IGP is not a member of the Police Commission.

The above analysis would make it clear that under the Constitution no powers are directly granted except to the elected representatives who are made directly responsible to the people through the exercise of the franchise in periodical elections.

In Switzerland, all laws have to be approved by the people who also have the right to initiate legislation by petition of a specified number of electors.

Supported by the above analysis, we submit with respect that the 17th Amendment is violative of Articles 3 and 4 of the Constitution, and is ultra vires, invalid and of no force or avail without approval by the people at a referendum.

The Constitution envisages several degrees of inconsistency of laws with the Constitution:

(a) At the lowest level under Art. 84 an act inconsistent with the Consistent with the Constitution can be passed with a simple or special majority without amendment of any provision of the Constitution, and would be valid notwithstanding the inconsistency. (This is another instance of Constitutional abeyance. A proliferation of such laws would threaten the integrity of the legal order).

(b) At the next level Bills for the amendment of any of the Articles other than 1,2,3,6,7,8,9,10 and 11 or 83 and paragraph 2 Art. 30 or paragraph 2 of Art. 62 would be valid if passed by a 2/3 majority of the total number of Members of Parliament.

To be continued