Another looming constitutional crisis
Posted on July 11th, 2020

by C.A.Chandraprema Courtesy The Island

  • Yahapalana domination of CC may continue till October 2021
  • -CC member Javed Yusuf openly engages in politics
  • -SLPP on a roll as opposition flounders

Last Thursday’s headline story in The Island should set the alarm bells ringing within the SLPP government. This report said that one of the three persons from outside Parliament appointed to the Constitutional Council, lawyer Javed Yusuf, had joined the group of NGOs that had come together last week to oppose the SLPP’s bid for a two thirds majority in Parliament and to revitalize the floundering yahapalana election campaign. No member of the Constitutional Council should have joined such a gathering. Even though Parliament stands dissolved, the existing Constitutional Council will remain functional not only till the next Parliament meets, but till a new Constitutional Council is formed. When it comes to the three outsiders on the CC, they hold office for a fixed term of three years. Yusuf was appointed in October 2018 and according to the wording of Article 41A(8) he will continue to hold office as a member of the CC for over another year till October 2021.

By being present at a political event, he has violated the spirit of Article 41A(5) which states that the persons who are not Members of Parliament who are appointed to the CC shall be persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party. Yusuf can claim that he is not a member of any political party even though he is openly engaging in politics against the SLPP. Once appointed, however, there is no mechanism by which such an appointed member can be removed from office unless both the Prime Minister and the Leader of the Opposition form the opinion that such member is physically or mentally incapacitated and is unable to function further in office. There is no provision to remove the outsiders appointed to the CC even if they openly engage in politics after being appointed.

Who will continue into 2021?

People are used to the idea that when Parliament stands dissolved, the new Parliament that convenes after a general election will start everything afresh. That does not appear to be the way things work with the Constitutional Council which appears to stand outside Parliament as a separate body. According to the provisions in Chapter VIIA of the Constitution which was introduced by the 19th Amendment, we see that the Prime Minister, Speaker and Leader of the Opposition will sit on the Constitutional Council only so long as they hold those positions. But when it comes to the Parliamentarian appointed by the President, the two Parliamentarians jointly appointed by the PM and Leader of the Opposition, and the Parliamentarian appointed collectively by the smaller political parties in Parliament, they have fixed terms of three years.

Article 41A(8) does not specify that they will cease to hold those offices if they cease to be parliamentarians due to losing an election when they are half way through their terms on the CC. However, if any one of them ceases to be an MP after the forthcoming election, they will be debarred from sitting on the Constitutional Council by implication because the Constitution specifies that the person occupying that particular slot on the Constitutional Council has to be a Member of Parliament.

However, if such an MP who happens to be sitting on the Constitutional Council at present is reelected at this general election, then it follows that he has to continue to serve his three year term even though the new President may not want that MP to represent him, the new Prime Minister will not want to have anything to do with the two MPs appointed jointly by his predecessor and the Leader of the Opposition and the smaller political parties in the new Parliament may not want to have anything to do with the MP representing them! Nothing has been said anywhere about what happens when a Parliamentary election is held halfway into the tenures of the MP members of the Constitutional Council. All those on the Constitutional Council continue to sit on the CC through the dissolution, the election, the convening of the new Parliament and right up to the formation of a new CC under a new Speaker, a new PM and a new Opposition Leader. So what happens if the MPs who were on the CC are re-elected at this election?

According to articles 41A(8) and 41E(7) of the Constitution, the only way that a Constitutional Council member with a fixed three year term can be removed is as follows: a) if he resigns from his office b) is removed from office by both the Prime Minister and Leader of the Opposition forming an opinion that such member is physically or mentally incapacitated and is unable to function further in office c) is convicted by a court of law for any offense involving moral turpitude d) if a resolution for the imposition of civic disability upon him has been passed by Parliament and e) if he without obtaining prior leave absents himself from three consecutive meetings of the Constitutional Council.

As of now, the Constitutional Council is made up of the following members: Speaker Karu Jayasuriya, Prime Minister Mahinda Rajapaksa, Opposition Leader Sajith Premadasa, the President’s nominee Mahinda Samarasinghe, Bimal Ratnayake representing the smaller political parties, Talatha Athukorale and R.Sampanthan as the joint nominees of the PM and Opposition Leader and the three non parliamentarians, Jayantha Dhanapala (who resigned recently and has not yet been replaced), Naganathan Selvakumaran and Javed Yusuf.

Of these individuals, Mahinda Samarasinghe has joined the SLPP so if he gets re-elected to Parliament, there will be no issue with him continuing to represent the President till the end of his three year term. If he does not get re-elected the President can nominate another MP to represent him in the CC. Of the two MPs that the PM and Opposition leader are supposed to appoint jointly, Mr Sampanthan had been nominated to that position after he lost the position of Leader of the Opposition to Sajith Premadasa. It follows that if he is re-elected to Parliament as he certainly will, he will continue to be on the CC. The MP representing the Prime Minister is UNP/SJB Parliamentarian Talatha Atukorale who will continue on the CC if she is re-elected to Parliament. Then there will be the two outsiders Javed Yusuf and Naganathan Selvakumaran who were both appointed in October 2018 by the yahapalana Prime Minister and the yahapalana Opposition Leader.

The next Speaker’s burden

So even after trouncing the yahapalana presidential nominee and winning this general election, the country would still not be rid of the yahapalana Constitutional Council. Of the existing ten members of the CC, there is the possibility that apart from Javed Yusuf and Naganathan Selvakumaran, Bimal Ratnayake, Talatha Atukorale and R.Sampanthan could still be sitting on the CC after the general election as well – that’s five already. Then the opposition leader will be a yahapalanite which means that six of the ten members of the CC will be yahapalanites and this situation will continue till October 2021. This has very serious implications.

The Constitutional Council is the body that decides who will sit on important commissions like the Election Commission, the Public Service Commission, the National Police Commission, the Audit Service Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission, the Delimitation Commission and the National Procurement Commission.

The Constitututional Council also has veto powers over the appointment of the Chief Justice and the Judges of the Supreme Court, the President and Judges of the Court of Appeal, the Members of the Judicial Service Commission, other than the Chairman, the Attorney-General, the Auditor-General, the Inspector-General of Police, the Parliamentary Commissioner for Administration (Ombudsman), and the Secretary-General of Parliament. What we are now faced with is the possibility that till the last quarter of 2021, we will be saddled with a Constitutional Council which does not represent the will of the people. The two thirds majority that the SLPP is asking for is not a luxury but a necessity.

Due to the possibility of the continuation of a yahapalana majority in the Constitutional Council, the defeated yahapalanites may be able to stuff the independent commissions full of yahapalanites just as they did earlier in 2015. According to Article 41B, when the Constitutional Council recommends persons to be appointed to the independent commissions, the President has to make those appointments within 14 days of receiving the recommendations. If he fails to do so, the persons so recommended will be deemed to have been appointed as the members of the said Commission and the person whose name appears first in the list will automatically become its chairman.

The Elections Commission appointed at the end of 2015, will be completing its five year term at the end of this year. One can only imagine what could happen if the yahapalanites are able to continue to have a majority in the Constitutional Council. The Speaker of the next Parliament will have to be a very strong individual who will not take any nonsense from the Constitutional Council if the yahapalanites still have a majority in it after the election. According to Article 41E(1) the CC is required to meet at least twice every month. But such meetings have to be summoned by the Secretary- General to the Council only on the direction of the Speaker who will be its Chairman. If the worst case scenario materializes and the new SLPP government is saddled with a yahapalana majority Constitutional Council, the Speaker will have to keep it under control until October 2021 when a new CC can be appointed in the proper manner laid out in the 19th Amendment.

The very fact that a sitting member of the Constitutional Council could openly join a political movement at an election shows the dire situation this country is in. Due to a providential piece of luck Javed Yusuf did not get to partner Ratnaveevan Hoole in the three member Elections Commission in 2015. After winning the parliamentary election of August 2015, the yahapalana camp divided up the positions in the government and the opposition among themselves with the TNA assuming the leadership of the opposition and the JVP taking over the position of chief opposition whip. The three non-parliamentarian members of the Constitutional Council were chosen by Prime Minister Ranil Wickremasinghe and Opposition Leader R.Sambandan which basically meant that all three were yahapalanaites.

A yahapalana Parliamentarian who may be sitting on the Constitutional Council has every right to join any political movement he likes because he is an elected representative of the people and he is sitting on the CC in his capacity as an MP. However it’s a very different matter when unelected members of the CC openly engage in politics. To be sure if the Constitutional Council had been constituted in the proper manner with Prime Minister Ranil Wickremasinghe and Mahinda Rajapaksa (the leader of the largest opposition group in the 2015 parliament) deciding on the nominees, this situation would have been very different. Proponents of the 19th Amendment may argue that the Constitutional Councils appointed in 2015 and 2018 were aberrations and that the CC was never meant to be constituted in the way it was under yahapalana hegemony.

Indeed it was an aberration which places an added onus on the so called distinguished personalities appointed from outside Parliament to the Constitutional Council to make up for that by their exemplary conduct. But what we are seeing is the very opposite.

Lackluster election campaign

Victory for the SLPP at this election is a foregone conclusion and the holding of the general election may not be disrupted despite the discovery of an unexpectedly large Covid-19 cluster in a rehabilitation centre in Kandakadu. The discovery of this cluster was a reminder to everyone that we are not through the woods yet. However similarly large clusters were found among returnees from overseas but the spread of the disease has so far been successfully contained. By now the health authorities would have mastered the way of imposing localized lockdowns to contain outbreaks. The health guidelines issued for the election were based on the assumption that the Covid-19 threat was still ongoing, so the proper implementation of the same will enable the election campaign to go ahead without interruption.

With just over three weeks to go for polling day, the only visible signs of enthusiasm in this campaign are to be seen at meetings of the SLPP attended by the President and PM. The opposition parties appear to be struggling to maintain the momentum of their campaigns. Covid-19, the split in the UNP and the certainty of defeat at this election have all taken their toll on the UNP’s breakaway group the SJB. However, there always is a greater level of activity in breakaway groups of political parties which appears to be missing in this case. There was even the report that the feverish attempts to get the Gazette notification dissolving Parliament cancelled was to allow the estanraged factions of the UNP to patch up and contest as one entity as the prospects of both factions would be bleak if they contested separately.

This in fact may be why the NGO community got together to oppose the government’s bid to obtain a two thirds majority as recounted earlier. Personalities not seen in public after 2015 have emerged out of the woodwork to salvage what they can out of the shambles of the yahapalana experiment. There is the possibility that the efforts of the NGO community may depress the opposition campaign even further. That would be the equivalent of the SLPP having figures of the past like Sajin Vaas and Mervyn Silva on their stages. Be that as it may, the election campaign overall is so devoid of dynamism and the adrenalin factor that though we are in the midst of an election, the evening news bulletins start not with politics but with the arrest of hitherto unkown underworld figures and the like – a very unusual situation indeed. The situation is such that one fears for the voter turnout at this election. Something will have to be done in the remaining three weeks to get the adrenalin pumping in order to bolster voter turnout.

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