02 June 2020

The Constitutional Council and its discontents


The 17th Amendment to the Constitution was passed in October 2001. It took more than a year for it to be implemented, perhaps because lawmakers suddenly realized that they had in their haste in fact legislated against their own interests.

It was all about the Constitutional Council and Independent Commissions. It came with flaws, but the intention was good. In short, it was a mechanism designed to curb the powers of the executive president since the abolition of that office was proving to be difficult, even if such a move was advisable given the reality of the illegally passed 13th Amendment to the Constitution.

The ill-advised 18th Amendment wrecked all of that with the then President, Mahinda Rajapaksa, replacing the Constitutional Council with a Parliamentary Council. The 19th Amendment, if one goes by the rhetoric of its advocates, was about restoring the ‘independence’ of the various commissions and re-curbing the powers of the executive president. In theory. In a nutshell there were four key elements: a) presidential powers to dissolve parliament, b) the appointment and removal of the prime minister, c) the notion of a national government d) the institution of a constitutional council mandated to recommend appointments to independent commissions.

Now, let us mention, parenthetically, that the Supreme Court pointed out serious flaws in the draft amendment and that the lawmakers rather than amending it essentially rewrote it, effectively giving the proverbial finger to the judicial arm of the state.

Later, both ‘a’ and ‘b’ above were brought into question and led to wrangling over interpretation, throwing the country into confusion for several months. The third element, that of a national government was essentially a device to circumvent limitations on cabinet-size. We will talk of ‘f’ shortly. Suffice to say that from draft to legislation and implementation the Yahapalanists turned the 19th Amendment into a classic case of how not to engage in legislation. It was an unadulterated example of classic constitutional tinkering.

The fourth. The Constitutional Council. Now this body is, in theory, the key to the affirmation of the idea of independence when it comes to the various commissions. Obviously the level of independence as evidenced by composition and of course the individuals that make the Council would be what reflects the level of independence in the commission it helps constitute. Composition, then, was key.

This is what Chapter VIIA, Article 4 gave us: the Speaker, the Prime Minister, the Leader of the Opposition, the President’s appointee/representative (from Parliament), five persons nominated jointly by the Prime Minister and the Leader of the Opposition (of whom two would be Members of Parliament) and one representing political parties or independent groups in Parliament to which neither the Prime Minister nor the Leader of the Opposition belong (not necessarily a Member of Parliament).

In effect then, at best, we would have six politicians and four independents. How a body in which politicians make the majority reflects ‘the diversified character of society’ is obviously something that the lawmakers weren’t worried about.

Let’s consider the composition of the Constitutional Council. In 2015, we had the ex-officio members. The President nominated Champika Ranawaka (a serving minister, no less!). The Prime Minister and the Leader of the Opposition decided they will each pick on and then come up with three names jointly. So the Prime Minister nominated Wijeyadasa Rajapaks (yes, also a serving minister) and the Leader of the Opposition nominated John Seneviratne. The ‘independents’ were Dr. A.T. Ariyaratne, the well-known leader of the Sarvodaya Movement, Radhika Coomaraswamy (a well-known operative in the advocacy industry) and Shiby Aziz (former Attorney General).

In 2018 we had the following apart from the ex-officio members: Mahinda Samarasinghe (President’ nominee), Thalatha Athukorala (Prime Minister’s nominee), Chamal Rajapaksa (Opposition Leader’s nominee), Bimal Ratnayake (representing ‘Other Parties’) and the three ‘independents’ — Jayantha Dhanapala (a strong backer of the then regime operating in forums ostensibly to further the cause of democracy but typically remember the term when the UNP is in political trouble), Javed Yusuf (with SLFP roots but politically compromised much like Dhanapala) and Naganathan Selvakkumaran (whose loyalties are unknown and therefore gets the benefit of the doubt).

So we’ve had constitutional councils that were politician-heavy and political compromised, effectively mangling the idea of ‘independence’ in related institutions. Add to this ‘independents’ whose independence is nothing more than not being official members of political parties. Track records reveal however the extent of their independence, politically and ideologically. The same is naturally reflected in the commissions that they set up with the difference that the members of such bodies are neither politicians nor have stated political loyalties. ‘Stated’ is an important word here, let us not forget. It deceives more than clarifies, hides more than reveals.

If the 19th doesn’t work and if we still want ‘independent’ commissions, then the 19th should be amended. That’s obvious. An alternative course of action would be to do away with independent commissions which have, over the past 18 years, proved to be ineffective in affirming the ideal of independence. It would be better to have accountability. In a word, representation. In other words let the executive branch of the state and the relevant protocols of appointment and promotion prevail. The Parliamentary Council (as per the 18th) is far more honest and its effectiveness as good or bad as the Constitutional Councils that followed.

What’s fundamental here is what underlines the need for such commissions, namely the ineffectiveness and even corruption of systems. In other words, the lack of safeguards regarding the same. It’s like the Financial Crimes Investigation Division (FCID) and of course the many Presidential Commissions of Inquiry we’ve had over the years. Their constitution clearly imply that existing systems (courts and police) were and are (as the case may be) ineffective. The logical course of action would be to institute systemic reform. While the need for quick action is understandable, system-fixing should not be supplemented by such ad hoc measures, one would think. However, such fixing has been abandoned altogether and the remedies have been marked by one thing and one thing alone. Political expedience. Victimization, yes. Vendetta, yes.

And so, if we were to go with the commission of the moment, if you will, we need to talk of the Election Commission. We have that ‘august’ body telling us that distributing relief in the form of a Rs 5000 hand-out is wrong since it gives a political edge to the ruling party, even as it argues in court that it is unable to conduct elections! That’s having the cake and eating it. The proverbial raevula as well as the keenda. Mahinda Deshapriya is washing stuff, immersing it all in muddy water and washing it. Again and again. As per hoda hoda madey daanava.

He has hand-picked public officials with known political loyalties to say ‘we can’t help you conduct elections.’ Arguably, even if one Divisional Secretary, for example, says ‘no can do,’ then the doing of it has to be postponed. The reasons may be mischievous of legitimate. I would assume it’s the latter. However, if just three say ‘can’t’ and 253 say ‘can’ then it would seem clear that elections can be held. Special measures can be put in place to sort out the problems in the problematic three divisions, surely? But Deshapriya hangs on to the ‘three’ and says ‘no.’

And then we have Ratnajeevan Hoole, who is now a member of the Election Commission and now an independent citizen. Officially above politics and political parties, but in reality politically and ideologically committed to the line taken by the Tamil National Alliance. He slips and flounders often, like when he wrote about M.A. Sumanthiran’s take on federalism (‘we will go for it without naming it’). Does anyone know the third member of that commission, one should ask? The third member is present more in absence, given the penchant that the other two have for issuing statements, Deshapriya as per official requirement obtained from being Chairperson and Hoole because he is, well, Hoole, a maverick and confused political creature if ever there was one.

Who appointed these people? Why, the CC, the Constitutional Council! How so? Why, the 19th Amendment!

Obviously this is not the moment to go for constitutional reform with respect to the 19th Amendment and all its flaws. Matters relating to the holding of parliamentary elections is before the courts. The court will determine in its wisdom, so let us not presume anything here. However, sooner or later, we need to go for system-fix and not sticking-plaster solutions. Integrity, clearly cannot be obtained from constitutional article and relevant caveat. Efficiency, on the other hand, can be the issue of a robust institutional arrangement with a clear procedural regime.

So what can we say about the Constitutional Council as per the 19th Amendment? It’s easy to say ‘the less said, the better.’ We should talk about it and such a discussion will certainly not cover with glory its architects, those parliamentarians who voted for it or their relevant cheering squads.