By C. A. Chandraprema Courtesy The Island

January 31, 2019, 12:00 pm

For nearly two decades, the view that appointments to high state positions should be made only on the recommendations of an apolitical vetting body styled the Constitutional Council has been propagated by certain interested parties. The need for some kind of a vetting process in making high state appointments became a matter for discussion because unsuitable appointments were in fact made at various times and certain parties were able to use that to propagate the view that the elected government and especially the elected President could not be trusted to make such appointments and that a mechanism had to be set up to confer that power on an apolitical body that brings both the government and the opposition together along with some wise and distinguished non-politicians. On the face of it, this seems quite a reasonable idea. The problems arise when you try to put what looks like a good idea into practice.

The key state appointments that were deemed to need a wider consultative process were positions like the Judges of the Supreme Court and the Court of Appeal, the Attorney-General, Auditor-General, Inspector-General of Police, Parliamentary Commissioner for Administration (Ombudsman) and the Secretary-General of Parliament, the Chairmen and members of the Election Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission of Sri Lanka, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission and the National Procurement Commission.

Under our present Constitution (after the 19th Amendment), the Constitutional Council consists of the Prime Minister; the Speaker; the Leader of the Opposition; one Member of Parliament appointed by the President; five persons nominated jointly by both the Prime Minister and the Leader of the Opposition of whom two persons shall be Members of Parliament; and one Member of Parliament nominated by agreement of the majority of the Members of Parliament belonging to political parties or independent groups, other than the political parties to which the Prime Minister and the Leader of the Opposition belong. The Speaker of Parliament is the ex-officio Chairman of the Constitutional Council. Thus at present the Constitutional Council is made up of seven Parliamentarians and three outsiders. In naming their five nominees to the CC, the Prime Minister and the Leader of the Opposition are required to consult the leaders of political parties and independent groups represented in Parliament so as to ensure that the Constitutional Council reflects the ‘pluralistic character’ of Sri Lankan society.

The three non-parliamentarians who are to sit on the CC are to be persons of eminence and integrity have distinguished themselves in public or professional life and who are not members of any political party. Even though the three wise outsiders are not supposed to be members of any political party, the Constitution requires the Prime Minister and Leader of the Opposition to consult the political parties in Parliament when making appointments to these three positions! In the Constitutional Council that was set up immediately after the 19th Amendment was promulgated, appointing the CC was a simple matter because the Prime Minister Ranil Wickremesinghe and Opposition Leader R. Sampanthan were both on the same side and had contributed to getting President Maithripala Sirisena elected to power. Thus the first CC appointed under the 19th Amendment was a 100% yahapalana outfit. The Prime Minister was a yahapalanite, the leader of the opposition was a yahapalanite, the Speaker was a yahapalanite, the five nominess to be appointed by the Prime Minister and leader of the opposition were all yahapalanites, the President’s nominee to the CC was a yahapalanite and the nominee of the political parties to whom neither the Prime Minister nor the leader of the opposition belongs was a yahapalanite.

Thus the body which was supposed to ensure that appointees to high state offices would not be political appointees became the body that guarantees that every person elected to high office in the past four years was a yahapalanite. Even the former Solicitor General turned UNP provincial councilor Srinath Perera admitted in an interview with this newspaper, that top positions were being given to political fellow travelers of the government. Probably, never before in a democratic country has a constitutional provision introduced specifically with a view to ushering in good governance, been perverted in that manner. Despite the fact that the yahapalanites themselves perverted the Constitutional Council in that manner, the idea that this CC should consist of a majority of non-parliamentarians in order to ensure that it was not politicized and continued to hold sway so much so that in the proposed new constitution, provision has been made to reduce the number of parliamentarians on the CC and to make the number of non-parliamentarians the majority.

Going round and round in circles

Under the proposed draft constitution, the Constitutional Council is supposed to be made up of the following persons – the Prime Minister; the Speaker of Parliament; the Leader of the Opposition; the Speaker of the Second Chamber; one person appointed by the President; five persons appointed on nomination by both the Prime Minister and the Leader of the Opposition; and one person nominated by agreement among the majority of the Members of Parliament belonging to political parties or independent groups, other than the political parties to which the Prime Minister and the Leader of the Opposition belong. Thus we see that the number of persons on the CC is to go up from ten to eleven with the addition of the speaker of the second chamber. The composition is also to change from having seven parliamentarians and three non-politicians at present to just four parliamentarians seven non-politicians under the proposed constitution. This is obviously in keeping with the idea that non-politicians were somehow more exalted, more independent, more upright and less likely to do the wrong thing than a politician.

There is a specific provision in the draft constitution which says that other than the Speaker, Prime Minister, Leader of the Opposition and the Speaker of the proposed second chamber, none of the other members of the CC should be Members of Parliament, Members of the proposed Second Chamber, Members of a Provincial Council, or members of any political party. However in selecting their supposedly non-political nominees, the Prime Minister and the Leader of the Opposition are mandatorily required to consult the leaders of political parties represented in Parliament ‘so as to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society, including professional and social diversity’. The now defunct 17th Amendment also had very similar provisions in appointing the ostensibly non-political majority in the CC. What the 17th Amendment said was that in nominating the said five persons, the Prime Minister and the Leader of the Opposition are to consult the political parties represented in Parliament and three such persons were to be appointed only in consultation with the Members of Parliament who belong to the respective minority communities, so as to represent minority interests. The proposed draft constitution has not been as specific as the 17th Amendment in stating that the minority community political parties had to be consulted. However, when it is said that the Prime Minister and the Leader of the Opposition have to consult the leaders of political parties and independent groups represented in Parliament ‘so as to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society’, what is meant is more or less the same thing.

In an adversarial political system with the Prime Minister and Opposition Leader representing opposing sides, the only practical way an agreement can be reached on making nominations to the CC will be if the two sides divide up the slots among themselves with the PM appointing two of his catchers, the Leader of the Opposition appointing two of his, and taking turns to appoint the remaining member. That is how things happened when the 17th Amendment was operational. In addition to these five persons, the President can appoint someone to represent him and the smaller parties in Parliament who have not been able to get either the position of Prime Minister or the position of Leader of the Opposition can nominate their own representative to the CC.

What happened in these instances also was that the President appointed his catcher and the smaller parties took turns appointing their catchers to the CC in turn. When the 17th Amendment was first promulgated nearly two decades ago, many people thought there would be a gridlock because the adversaries in parliament may not be able to agree on nominees to the CC but a ‘I’ll scratch your back, you scratch my back’ kind of cooperation soon evolved with the political parties sharing out the slots among themselves. From the very first Constitutional Council that was formed, it was painfully obvious that all those sitting on it were stooges of various political parties just as it is obvious today that the three ostensible non-politicians on the CC are all yahapalanites.

Why this proposal for a Constitutional Council has been included in the draft constitution at all is a moot point. The purpose of having a CC was to curb the power of the executive President had in making these appointments. If the executive presidency is going to be abolished as the draft constitution has proposed, then what is the purpose of this Constitutional Council? If the executive power is to be exercised by a Prime Minister and Cabinet appointed from within parliament as has been proposed, why would a committee of Parliament like COPE not be able to do the same job even better? It will of course be argued in keeping with the ideas driving this proposal that even if the executive power is to be exercised by the Prime Minister and cabinet appointed from within Parliament, they are still politicians and therefore they cannot be trusted to make the correct decisions. If politicians elected by the sovereign people are not to be trusted, how can anyone trust the catchers, friends and fellow travelers of these very same politicians who are nominated to the CC?

The purpose of the CC appears to be to provide the cronies of politicians with a respectable station in life. Furthermore if politicians are so untrustworthy, why do we have elections at all? It should be recognized that all mechanisms that have been proposed to keep politicians out of the decision making process are bound to fail because even if the politician is not involved in making the relevant appointments, his catchers will be; under all the hare brained schemes that have been proposed in this regard over the past two decades. Perhaps it’s time to take due cognizance of the fact that the elected representatives of the people cannot be kept out of the loop no matter what mechanism we try to devise. The present arrangement where seven of the ten members are parliamentarians is in fact better than the arrangement that existed under the 17th Amendment and which has now been proposed once again in the draft constitution. At least the seven members of Parliament on the CC are peoples’ representatives and not foreign funded agents masquerading as do gooders. The most rational course of action may be to get rid of the three remaining non-parliamentarians in the CC and to turn it into a permanent parliamentary oversight body like COPE which is made up of representatives of all parties in Parliament.

That should more than suffice to supervise the appointments to high office made by a Prime Minister and Cabinet selected from within the same Parliament. Even if the executive presidency were to remain, such a parliamentary committee will be able to do the work of the CC much better and the people will have the benefit of knowing that these decisions were at least being made by people’s representatives and not by unelected agents of foreign interests and various cronies of politicians.