{"id":106864,"date":"2020-09-21T17:09:11","date_gmt":"2020-09-22T00:09:11","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=106864"},"modified":"2020-09-24T15:14:11","modified_gmt":"2020-09-24T22:14:11","slug":"the-constitutional-council-should-go","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/09\/21\/the-constitutional-council-should-go\/","title":{"rendered":"The Constitutional Council should go"},"content":{"rendered":"

Chanaka Bandarage<\/strong><\/em><\/span><\/h2>\n\n\n

The Constitutional\nCouncil (CC) is a 10 member constitutional authority tasked with\nmaintaining the Independent Commissions and monitoring their affairs. <\/p>\n\n\n\n

The CC is\naimed at depoliticising the public service.<\/p>\n\n\n\n

The CC was first\nestablished in 2000 under the Seventeenth Amendment to the Constitution.\nIn 2010 President Mahinda Rajapaksa replaced it with a Parliamentary Council, under\nthe Eighteenth Amendment. After Maithripala Sirisena was elected as the\nPresident, the then Prime Minister Ranil Wickramasinghe presented reforms to\nreinstate a new Constitutional Council in 2015 under the Nineteenth Amendment.<\/p>\n\n\n\n

Five\nindependent commissions are established under the CC. They are the Public Service\nCommission, Election Commission, National Police Commission, Bribery or Corruption Commission, Human Rights\nCommission and the Finance Commission.<\/p>\n\n\n\n

No doubt that\nestablishing them (CC and the 5 Independent Commissions) was done in good\nfaith. The objective was to minimise the Executive\u2019s influence over those vital\nbodies and depoliticise the public\nservice.<\/p>\n\n\n\n

Are these\nobjectives good?  Have we achieved them? <\/p>\n\n\n\n

The answers to these two questions are Yes and No\nrespectively.<\/p>\n\n\n\n

As\nstated before the composition of the CC consists of ten members. Three of them\nare ex- officio members and the rest are appointed. As per Chapter VIIA,\nArticle 41, of the Nineteenth Amendment to the Constitution, members of\nthe CC consists of the following: <\/p>\n\n\n\n

(a)\nthe Prime Minister;<\/p>\n\n\n\n

(b)\nthe Speaker of the Parliament;<\/p>\n\n\n\n

(c)\nthe Leader of the Opposition;<\/p>\n\n\n\n

(d)\none person appointed by the President;<\/p>\n\n\n\n

(e)\nfive persons appointed by the President, on the nomination of both the Prime\nMinister and the Leader of the Opposition; and<\/p>\n\n\n\n

(f)\none person nominated by agreement of the majority of the Members of the Parliament\nbelonging to political parties or independent groups, other than the respective\npolitical parties or independent groups to which the Prime Minister and the\nLeader of the Opposition belong, and appointed by the President.<\/p>\n\n\n\n

The CC makes the important\nappointments such as the Elections Commissioner, Public Service Commissioner,\nthe Chief Justice, Attorney General, Chairman and members of the Police\nCommission, Bribery or Corruption Commissioner etc. <\/p>\n\n\n\n

A simple glance at the CC\u2019s mechanism shows\nthat it is a mess. <\/p>\n\n\n\n

Do we really need it?<\/p>\n\n\n\n

Why should we go to such a lengthy extent to\ncreate a CC that comprised of 10 members? <\/p>\n\n\n\n

It is like instead of driving on the Galle\nRoad from Colombo to reach Galle, one taking the circuitous route of Ratnapura,\nEmbilipiitya, Tangalle and Matara to arrive in Galle.<\/p>\n\n\n\n

Though the end result is the same \u2013 the\nprocess to appoint personnel to the Commission is   bizarre\nand cumbersome.<\/p>\n\n\n\n

One would argue that despite the difficulties,\nwe could achieve a system that this independent and impartial.<\/p>\n\n\n\n

The writer agrees with this argument.<\/p>\n\n\n\n

But, unfortunately the manner in which the\nCC has operated in the past has shown that they have not been independent nor\nimpartial. <\/p>\n\n\n\n

The CC seems to have acted to please those\nwho had appointed them in those plum positions. <\/p>\n\n\n\n

A CC and Independent Commissions may work\nwell to a degree in  a country like UK,\nFrance or New Zealand, but unfortunately not in Sri Lanka where corruption is\nrampant.  If the object is to\ndepoliticise the public service, the best way to achieve this is by way of\ntrying to eliminate bribery and corruption that is so endemic in our system. The\nexisting laws must be enforced to the letter.<\/p>\n\n\n\n

The fact that majority of the lay members\nare appointed directly or indirectly by the government shows that the process\nhas lapses. Those members are likely to side with the government. Others would\nside with the party that appointed them. \nSadly, this is the human nature.<\/p>\n\n\n\n

Recent examples have shown that CC had\nrarely rejected nominations submitted to it by the governments (except on very few\noccasions). After the present government came to power in November 2019, every\nsingle nomination submitted to it had been promptly approved.  <\/p>\n\n\n\n

This shows that CC had operated in a way\nto \u2018rubber stamp\u2019 the nominations sent to it by the government.  Then, why should we maintain such a complex\nand an arduous process; at such an enormous expense?<\/p>\n\n\n\n

When looking at the 5 Commissions, it has\nbeen obvious that some of the Commissions have not operated independently at\nall. They have worked according to the whim and fancy of the politicians. They\nhave worked quite partially towards the incumbent governments.  A leading Sri Lankan website\nalleged that a Chairman of one of the key Independent Commissions solicited\nhuge personal favours from the country\u2019s Chief Executive.  There had been media reports that recommendations\nmade by the Police Commission had not been carried out by the Police Chiefs. There\nhad been stories of impropriety by the Commissioners of the Independent\nCommissions.<\/p>\n\n\n\n

It is significant that at least 6\/10\nmembers of the CC are lay people – not MPs elected by the people.  Then what legal or moral authority do they\nhave to go on to make such important appointments (to fill vacancies of the\ncountry\u2019s most important public service positions)?  <\/p>\n\n\n\n

Again, why should such an unelected body\nof people be given such enormous power?  Isn\u2019t\nit contrary to the accepted principles of representative democracy? <\/p>\n\n\n\n

The President, is the head of State of Sri\nLanka. She\/he is elected by the people at a Presidential Election. But she\/he\nis not even a member of the CC!<\/p>\n\n\n\n

The President should have the free hand to\nappoint personnel that she\/he wants. Otherwise how can she\/he fulfills the\npromises made to the people at the Presidential election? Why should the\nPresident be deprived of the opportunity to appoint personnel that she\/he wants\nin the public service? It is his\/her government (this is akin to a father being\ndenied the opportunity of disciplining his children and that task given to an\noutsider).<\/p>\n\n\n\n

It is the standard practice adopted in\nmost democracies \u2013 the elected head of state fills the appointments of the important\ngovernment positions (eg. President of the USA, Prime Minister & the\nCabinet of the UK\/Australia). These countries do not have CCs.<\/p>\n\n\n\n

If the President makes wrong decisions\nshe\/he could be ousted at the following Presidential election. <\/p>\n\n\n\n

Re other provisions of draft 20A, the\nwriter shall express his views\/position in a separate article, to be published\nin Lankaweb. While the writer intends to make a comprehensive analysis about\nthem, for the time being states that it is good that the President\u2019s term of\noffice will continue to remain for 5 years and that his\/her limit to hold the\noffice is restricted to two terms.  The\nwriter states that the Nineteenth amendment removed some of the immunity\navailable for the President (Article 35 (3), and that this should remain the\nsame.  <\/p>\n\n\n\n

The\nwriter is an International Lawyer<\/em><\/p>\n\n\n\n

zx102@bigpond.com<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[88],"tags":[],"class_list":["post-106864","post","type-post","status-publish","format-standard","hentry","category-chanaka-bandarage"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/106864","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=106864"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/106864\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=106864"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=106864"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=106864"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}