TamilWeek Feb 19, 2006
‘Constitutional Council’ – A contrary view

By Amrit Muttukumaru

The demand from some civic groups to reconstitute the
‘Constitutional Council’ (CC) would give the impression that it would
make a substantial contribution to good governance, which this
country so desperately needs.

There is no doubt that the objectives of the 17th Amendment which
creates the CC are most relevant particularly in regard to
depoliticizing appointments to key institutions of government. Under
the 17th Amendment, all appointments to critical state institutions
statutorily require the concurrence of the CC.

These include the elections, bribery and corruption, public service,
police, human rights and judicial service commissions as well as the
chief justice and the judges of the Supreme Court, the president and
judges of the Court of Appeal, attorney-general, auditor-general and
the IGP. These purported ‘independent’ commissions and individuals
are in turn responsible for the efficient discharging of their respective
functions in the public interest without fear or favour.

They have been vested with wide-ranging powers to fulfill this. For
example, in respect of the National Police Commission, this includes
establishing “procedures to entertain and investigate public
complaints..” This is in addition to important administrative functions
such as appointments, promotions, transfers, disciplinary control and
dismissals of personnel. Hence, the CC is theoretically a potent
check on abuse of power particularly from those wielding political
authority and a guarantor of the rule of law and fundamental rights.

This writer has said it earlier and wishes to reiterate that in addition
to these explicit powers, there is an implicit power, which has been
either inadvertently, or as is suspected, conveniently overlooked
much to the delight of most of our politicians and senior bureaucrats
as well as those ‘captains’ in the corporate sector who thrive in the
absence of a level playing field.

This implicit power of the CC is the powerful moral authority it could
wield to bring about especially the much-needed accountability in the
public life of this country. Hence, there is no question that we sorely
need the CC to be in place.

Track record

However, before hastening to any conclusions, it is pertinent to
examine whether there was any discernible improvement in the
country’s deplorable state of governance during the three-year
period ending March 2005 when the inaugural CC was in operation. It
needs no emphasis that on the contrary, the situation actually
deteriorated and it continues to do so currently as well. None of the
purported ‘independent’ commissions functioned in the manner
intended. For example, the Bribery and Corruption Commission was
for the most part inactive with internal conflicts and concentration on
relatively trivial cases while the Police Commission recommended for
promotion even some officers against whom there were serious
pending legal charges in addition to delegating to the IGP its powers
of disciplinary control and the Asian Human Rights Commission
seems to be far more active in this country than our own Human
Rights Commission!

The CC itself even proposed for membership to one of the
‘independent’ commissions, a retired senior police officer against
whom there was a documented charge of keeping the close company
of persons reportedly well known to be in the narcotics ‘business’!

Not for a moment is the writer suggesting that this happened
because of the CC! The point to be emphasized is that it worsened in
spite of the CC being in place! The downside in reconstituting the CC
without remedying at least some of the critical factors contributing to
this is that it will continue our farcical tradition of having in place
highly ineffective structures of good governance, which will
exacerbate the cynicism and frustration of the people with dire
consequences.

Almost the first order of business of the inaugural CC was the
proposed 18th Amendment, which entailed the granting of ‘immunity’
to the members of the CC. Mercifully, this proposal did not see the
light of day. Such a step is clearly unacceptable since it violates a
basic principle of good governance –accountability. What were the
CC members afraid of? Has not the country suffered enough due to
the draconian powers inclusive of ‘immunity’ given to the office of
executive president?

‘Political’ CC

The irony is that though depoliticizing of appointments to key state
institutions is the major goal of the 17th Amendment, amazingly the
appointment of the entire 10-member CC has been firmly entrenched
in the mire of politics. Among the shortcomings of the17th
Amendment, which was hurriedly drafted and rushed through
parliament, the most serious which effectively nullifies its salutary
intentions is the major role of the politicians in making appointments.

Hence, all ten members carry a significant degree of political
‘baggage’- some more than others. The Prime Minister, the Speaker
and the Leader of the Opposition are ex-officio members, while one
member is appointed by the President.

The Prime Minister and the Leader of the Opposition jointly nominate
five members where three of them are recommended by members of
parliament to represent the minorities. One member is nominated by
consensus by Members of 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 belongs”.

However, it must be noted that in practice, the clout of the
predominant parties, minority or otherwise will be the determining
factor. This political influence is worsened by other factors such as
the preponderance of the legal fraternity, instances of ‘conflict of
interest’ and possibly questionable competence. These mainly arise
due to the relative lack of transparency in making appointments to
such a crucial body. This is in spite of the 17th Amendment
stipulating that all 7 nominees other than the three ex-officio
members “shall be persons of eminence and integrity who have
distinguished themselves in public life and who are not members of
any political party”. Surely, should not there be some mechanism to
involve the public in this exercise? A possible devise would be to
publish in the media the proposed names and call for written
responses from the public within a specific time-frame. It should not
be a farce like the parliamentary committee on high posts, which
often considers appointments long after the people concerned have
functioned in their posts.

Moral Authority

If the implicit moral authority of the CC was exercised even to some
extent by the inaugural Council, the country would have been spared
much of the abuse of power, absence of accountability and alleged
corruption we have witnessed commencing from the higher echelons
of power. The corporate sector is also not immune from its own
shenanigans. In this connection, it is indeed pathetic to note that
even some retired members of the inaugural CC are articulating to
the media shortcomings of the CC “on condition of anonymity”. The
same applies to a former judge of the Supreme Court who waxed
eloquent on the deficiencies of the judiciary after his term of office! Is
it not a fact that by not exercising their potential moral authority, the
inaugural CC during their three-year period of office, which spanned
two governments, had in effect acquiesced with all the abuse of
power and alleged corruption perpetrated particularly by those in
political authority?

Recommendations review

It is a pity that much time has been squandered on the demand for
reconstituting the CC with all its serious shortcomings, which in any
event is going to be prolonged due to the lack of the political will. It
would have been more prudent to initially demand for the immediate
review of the 17th Amendment with a view to remedying at least its
major defects within a specific time-frame and subsequently strongly
agitate to reconstitute the CC. The glaring shortcomings of the 17th
Amendment include:

The continuing phenomenon of political appointees

The executive president being able to inordinately delay acting on
the nominations made by the CC to the respective ‘independent’
commissions.

Almost all appointees and nominees to the CC have been lawyers
and not surprisingly many of their recommendations for appointment
to the other purported ‘independent’ commissions are also lawyers.
This is undesirable since apart from creating its own vested interests,
it stultifies the much-needed broader perspective to issues. A major
reason keeping this country down is our archaic legal system. The
law’s unconscionable delays and hefty legal fees much of it allegedly
unaccounted are only the tip of the iceberg. What are the chances of
a lawyer dominated CC and Commissions initiating much needed
legal reforms?

Such a review should also consider listing the State and regulatory
agencies that should fall under the purview of the CC. For example,
at present the Securities and Exchange Commission does not fall
under the ambit of the CC. There is no justification for the Minister of
Trade and Commerce appointing several members to the ‘Council’ of
the Institute of Chartered Accountants of Sri Lanka.

This task should be vested with the CC. Similarly, the members of the
Sri Lanka Accounting & Auditing Standards Monitoring Board should
also be appointed by the CC.

The ‘Media Commission’ which was initially proposed and omitted
from the 17th Amendment should be considered for inclusion.
Ensuring the required powers and resources to the ‘independent’
commissions should be a priority.

Interim measure

If it is felt that the ‘review’ will take too much time and having the CC
in place immediately is ‘better than nothing’, it is suggested that as
an interim measure prior to reconstituting the CC, the names
proposed should be published in the media inviting written public
comments within a specified period. In the absence of this, we could
be saddled with an unsuitable CC for another three years with the
credibility of the institutions of state being further compromised and
the rule of law being further eroded with dire social and economic
consequences.

The interim measure being proposed in regard to filling current and
future vacancies in the CC until the review of the 17th Amendment is
completed and its deficiencies satisfactorily resolved is suggested to
be on the following lines:

The names of the 7 “persons of eminence and integrity who have
distinguished themselves in public life and who are not members of
any political party” to be made public through the print media with an
invitation to the members of the public to make written submissions in
regard to any substantiated objections within a stipulated period of
(say) three weeks to the Speaker of the Parliament of Sri Lanka.

The Speaker after due inquiry through his Parliamentary office will
duly inform the President, Prime Minister and Leader of the
Opposition of any sustainable / credible objections while also
submitting to them a complete listing of all objections received.
Objections would typically be on the grounds of the absence of
integrity, ‘conflict of interest’ and incompetence.
[Daily Mirror]
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