POSITION OF THE TAMIL NATIONAL ALLIANCE ON THE PROPOSED EIGHTEENTH AMENDMENT TO THE CONSTITUTION
The proposed eighteenth amendment to the constitution contemplates two basic changes in regard to: –
1) The incumbent President’s right to be elected to a further term beyond the presently stipulated two terms in office.
2) The repeal of the provisions of the seventeenth amendment to the constitution relating to the establishment of a constitutional council and it’s powers, the legalising of steps hitherto taken in breach of the provisions of the17th amendment to the constitution and new provisions in regard to the President’s powers to make appointments to the commissions and high offices to which the approval or appointment by the constitutional council was required as per the provisions of the seventeenth amendment to the constitution.
These two sets of amendments are incorporated in the proposed eighteenth amendment to the Constitution.
The Tamil National Alliance wishes to state that at the invitation of His Excellency President Mahinda Rajapakse, the leader of the Parliamentary Group of the Tamil National Alliance Mr. R.Sampanthan met with His Excellency the President and others on the morning of 4th July 2010. At this meeting the proposed entitlement of the incumbent President to be elected for a further term beyond the stipulated two terms was discussed. The leader of the parliamentary group of the T.N.A stated that as long as such an amendment retains the right of the people to ultimately determine whether an incumbent president should continue for a further term or not, in the event of an incumbent president seeking such a further term, and the sovereign right of the people to determine this issue was preserved, responding favourably to such a proposal could be considered. This view of the parliamentary group leader of the T.N.A was also influenced by the need and the desire to remain engaged with the government on issues of immediate concern to the Tamil people and particularly the displaced Tamil people, and the evolution of an acceptable political solution, in regard to both of which preliminary discussions had taken place between the President and Government and the T.N.A. To an enquiry whether the proposed amendment was available, government spokesman responded that the proposal was under preparation. No other proposed amendment to the constitution was discussed at this meeting.
The T.N.A now finds the scope and content of the proposed eighteenth amendment goes far beyond the entitlement of the President to seek a further term.
The seventeenth amendment to the constitution established a Constitutional Council in view of the extreme politicisation of the institutions of governance and to ensure the independence and integrity of the higher judiciary and other higher offices and thereby free the executive and judicial arms of the government from political influence. The measure of approval and importance attached by Parliament to the seventeenth amendment is apparent from the fact that the amendment was unanimously approved by Parliament.
A Constitutional Council was established under the seventeenth amendment. The Constitutional Council appointed the chairman and members of the different commissions and also granted approval for the appointment of the higher judiciary and other high offices. Unfortunately the elections commission was not appointed by the then president as per the nominations of the constitutional council.
On the expiration of office of the first Constitutional Council, the new Constitutional Council was not reconstituted. The advice of the Attorney General in regard to the modalities for the appointment of a member of the Constitutional Council representing the political parties other than those to which the Prime Minister and the Leader of the Opposition belonged was not followed. Meanwhile, without the Constitutional Council playing its due role appointments to the different commissions, the higher judiciary and other important offices were made.
The present amendment seeks to remove the Constitutional Council, legalise all appointments made in breach of the seventeenth amendment to the constitution, and restore the status quo ante as it existed prior to the enactment of the seventeenth amendment.
Such extreme politicisation of the institutions of governance and high offices would render good and democratic governance impossible, and the executive and judicial arms of governance to a great measure of unhealthy political influence. The rule of law and the fundamental and human rights of the people would be greatly jeopardised, making the position of the minority Tamil speaking people even more vulnerable than at present. Even the very limited powers granted by the thirteenth amendment to the Constitution are being removed by this Bill, by the abolition of the Provincial Public Service Commission and Provincial Police Commission. It is for these reasons the T.N.A cannot support the Eighteenth Amendment as presently constituted.
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