Constitutional Council

A contrary view

by Amrit Muttukumaru, February 13, 2006

The demand from some civic groups to reconstitute the ‘Constitutional Council’ (CC) would give the impression that it would make a substantial contribution to the 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 & 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 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 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. Tthe 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. 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 stae of affairs 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 device 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 started functioning in their posts.

Moral Authority

If the implicit moral authority of the CC had been 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 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 for, 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.

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