The Constitutional Council should go
Posted on September 21st, 2020

Chanaka Bandarage

The Constitutional Council (CC) is a 10 member constitutional authority tasked with maintaining the Independent Commissions and monitoring their affairs.

The CC is aimed at depoliticising the public service.

The CC was first established in 2000 under the Seventeenth Amendment to the Constitution. In 2010 President Mahinda Rajapaksa replaced it with a Parliamentary Council, under the Eighteenth Amendment. After Maithripala Sirisena was elected as the President, the then Prime Minister Ranil Wickramasinghe presented reforms to reinstate a new Constitutional Council in 2015 under the Nineteenth Amendment.

Five independent commissions are established under the CC. They are the Public Service Commission, Election Commission, National Police Commission, Bribery or Corruption Commission, Human Rights Commission and the Finance Commission.

No doubt that establishing them (CC and the 5 Independent Commissions) was done in good faith. The objective was to minimise the Executive’s influence over those vital bodies and depoliticise the public service.

Are these objectives good?  Have we achieved them?

The answers to these two questions are Yes and No respectively.

As stated before the composition of the CC consists of ten members. Three of them are ex- officio members and the rest are appointed. As per Chapter VIIA, Article 41, of the Nineteenth Amendment to the Constitution, members of the CC consists of the following:

(a) the Prime Minister;

(b) the Speaker of the Parliament;

(c) the Leader of the Opposition;

(d) one person appointed by the President;

(e) five persons appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition; and

(f) one person nominated by agreement of the majority of the Members of the Parliament belonging to political parties or independent groups, other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong, and appointed by the President.

The CC makes the important appointments such as the Elections Commissioner, Public Service Commissioner, the Chief Justice, Attorney General, Chairman and members of the Police Commission, Bribery or Corruption Commissioner etc.

A simple glance at the CC’s mechanism shows that it is a mess.

Do we really need it?

Why should we go to such a lengthy extent to create a CC that comprised of 10 members?

It is like instead of driving on the Galle Road from Colombo to reach Galle, one taking the circuitous route of Ratnapura, Embilipiitya, Tangalle and Matara to arrive in Galle.

Though the end result is the same – the process to appoint personnel to the Commission is   bizarre and cumbersome.

One would argue that despite the difficulties, we could achieve a system that this independent and impartial.

The writer agrees with this argument.

But, unfortunately the manner in which the CC has operated in the past has shown that they have not been independent nor impartial.

The CC seems to have acted to please those who had appointed them in those plum positions.

A CC and Independent Commissions may work well to a degree in  a country like UK, France or New Zealand, but unfortunately not in Sri Lanka where corruption is rampant.  If the object is to depoliticise the public service, the best way to achieve this is by way of trying to eliminate bribery and corruption that is so endemic in our system. The existing laws must be enforced to the letter.

The fact that majority of the lay members are appointed directly or indirectly by the government shows that the process has lapses. Those members are likely to side with the government. Others would side with the party that appointed them.  Sadly, this is the human nature.

Recent examples have shown that CC had rarely rejected nominations submitted to it by the governments (except on very few occasions). After the present government came to power in November 2019, every single nomination submitted to it had been promptly approved. 

This shows that CC had operated in a way to ‘rubber stamp’ the nominations sent to it by the government.  Then, why should we maintain such a complex and an arduous process; at such an enormous expense?

When looking at the 5 Commissions, it has been obvious that some of the Commissions have not operated independently at all. They have worked according to the whim and fancy of the politicians. They have worked quite partially towards the incumbent governments.  A leading Sri Lankan website alleged that a Chairman of one of the key Independent Commissions solicited huge personal favours from the country’s Chief Executive.  There had been media reports that recommendations made by the Police Commission had not been carried out by the Police Chiefs. There had been stories of impropriety by the Commissioners of the Independent Commissions.

It is significant that at least 6/10 members of the CC are lay people – not MPs elected by the people.  Then what legal or moral authority do they have to go on to make such important appointments (to fill vacancies of the country’s most important public service positions)? 

Again, why should such an unelected body of people be given such enormous power?  Isn’t it contrary to the accepted principles of representative democracy?

The President, is the head of State of Sri Lanka. She/he is elected by the people at a Presidential Election. But she/he is not even a member of the CC!

The President should have the free hand to appoint personnel that she/he wants. Otherwise how can she/he fulfills the promises made to the people at the Presidential election? Why should the President be deprived of the opportunity to appoint personnel that she/he wants in the public service? It is his/her government (this is akin to a father being denied the opportunity of disciplining his children and that task given to an outsider).

It is the standard practice adopted in most democracies – the elected head of state fills the appointments of the important government positions (eg. President of the USA, Prime Minister & the Cabinet of the UK/Australia). These countries do not have CCs.

If the President makes wrong decisions she/he could be ousted at the following Presidential election.

Re other provisions of draft 20A, the writer shall express his views/position in a separate article, to be published in Lankaweb. While the writer intends to make a comprehensive analysis about them, for the time being states that it is good that the President’s term of office will continue to remain for 5 years and that his/her limit to hold the office is restricted to two terms.  The writer states that the Nineteenth amendment removed some of the immunity available for the President (Article 35 (3), and that this should remain the same.  

The writer is an International Lawyer

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