People nominated to the Constitutional Council must reflect the pluralistic character of Sri Lankan society | (file photo)

Casually going through the comments under the featured news item, ‘Civil Society Disgraced by Choice of CC Nominees’, published in the Colombo Telegraph on September 23, 2015, I was surprised to see my name suggested by two readers for a post in the Constitutional Council. One of them was a stranger and the other was a classmate who later entered the prestigious Foreign Service through the front door and ended up as our Ambassador in France. School ties certainly die hard! The purported nomination was not worth writing home about because it was supported by only two of the over twenty million people in this country. Although I was personally pleased by this act of appreciation, I would not have touched the post with a barge pole, even if it was offered to me by the entire population. This article is an attempt to explain why.

Let me preface my explanation with an observation on the title of the Council. Why is the body called a Constitutional Council? A constitution is the basic law of the land. In that strict legal sense, what is ‘constitutional’ is what conforms to that law. The Constitutional Council (CC) has nothing to do with the Constitution, except being a part of it. But other parts of the Constitution are not prefixed with that adjective. For instance the Parliament in not called a ‘Constitutional Parliament’. Apparently the draughtsman has mistakenly used ‘constitute’ in the progressive tense implying the act of constitution of the respective commissions. For him the council that constitutes commissions is the CC. This confusion could have been avoided by calling it the ‘Constituting Council’. The Sinhala draughtsman has made the misnomer worse confounded by giving it a still more imposing title, ‘Ândukrama vyavasthâ sabhâva’, thus confining the adjective to the basic meaning of Constitution. If ‘Constituting Council’ was used in the English version, he would have rendered it as ‘Sthâpana Sabhâva’.

Reverting to the basic issue, the main purpose behind the creation of the Sri Lankan CC is said to be to install an entity that can function independently, without political influence. But the manner in which the members of the CC are to be selected belies that aspiration. Three of its 10 members are leading politicians. One is a nominee of the top politician of the land, the President. Five others are nominated by the two politicians leading the two sides of the House. The tenth member has to be a nominee of the minor parties in Parliament. Note that seven members of the CC are sitting members of Parliament. Only the other three are private persons.

Political bias
This structure reveals a naked political bias. It is clear that the first three members, namely the Speaker, the Prime Minister and the leader of the Opposition, being practising politicians, would be guided by the political dictates of their respective Parties. The nominee of the President would naturally be led by his nominator’s preferences. Similarly the five members nominated by the Prime Minister and the Leader of the Opposition would be naturally obliged to conform to their sponsors’ positions in the long run. To make matters worse, two in this category happen to be Ministers currently holding office. The member nominated by the minor parties would naturally carry their political flavor.
Article 41 A (4) piously declares, “In nominating the five persons referred to in sub paragraph (e) of paragraph (1), the Prime Minister and the Leader of the Opposition shall consult the leaders of political parties and independent groups represented in Parliament so as to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society, including professional and social diversity”. This is more easily said than done. Adorable as the precept may be, no one who has been witness to the continuing quibbling in Parliament would believe that these righteous hopes would be realized in actual practice. The political bias associated with the process of creation of the Council is bound to taint its decisions. One cannot plant a tomato seed and expect to get mangos from the resulting tree.

May be principled politicians appointed to the CC would rise above Party politics and perform at the expected level. Such principled men are few and far between in today’s public life. In any case, legislation should not be based on lofty expectations. It should provide for all contingencies that may arise in transactions between men of flesh and blood. Yet another inequity inherent in the working of the CC is the wide disparity between the power base of its members. On one side is the second and third citizens of the country. However qualified the private members may be, they would tend to play second fiddle to the former in the background of our traditional culture. Even if they disagree with the political members with nonchalance, they could be voted out by the latter who form the majority. In this context, decision by consensus is a foregone conclusion. What chance would even the most brilliant a-political candidate have against a mediocre rival from a power block represented by his selectors?

Thus the whole purpose of making the Independent Commissions live up to their names is defeated at the very beginning by the method of their creation. What really happens under the new dispensation is power taken out of the hands of a single politician devolves on a group of them, marginally broad basing it. It is noteworthy that in that devolution, several hitches cropped up under the first CC that never arose with regard to appointments made earlier by the chief executive. Nor did the new commissions stand out from their forerunners by way of composition or performance. Creation of a CC in this country appears to have arisen essentially from suspicion and distrust of the integrity of the chief executive. But the appointments made after the creation of a CC do not appear to show a conspicuous improvement on those made before. The reasons underlying the hiccups under the new system arose basically from political causes. Paradoxically, the attempt to depoliticize the administration proliferated the problems, mainly due to the political bias inherent in the reform.

Practices elsewhere
Advanced countries deliberately keep politics out of the running of their administrations. Our own CC is limited to the narrow task of creating and supervising the Independent Commissions and advising the President on top level appointments. Essentially it is a clearing house. In fact many common law countries entrust such establishment decisions to the chief executives at different levels or to bodies created by the Head of State or relevant Ministers. The PSC in Canada and Australia is a ministerial creation. In Britain, the Head of the Home Civil Service directly reports to the Prime Minister.

Though CCs in other countries do not perform identically with ours, their composition reveals a disposition to keep politics out of them even in civil law countries. In France the President of the Council is selected by the President of the Republic. Three members each are appointed by the Presidents of the Republic, the National Assembly, and the Senate. In Cambodia, three members are appointed by the King while the National Assembly and the Supreme Council of Magistracy elect three members each. In the Republic of Kazakhstan the Chairman of the Constitutional Council is appointed by the President of the Republic and two members are also appointed by him, two by the Chairman of the Senate and two by the Chairman of the lower house of Parliament. What is noteworthy is that in these countries, the relevant bodies make the nominations as an entity and not on a party or communal basis; nor do the selectors sit with their nominees to make decisions. The same measure of a-political and impersonal nomination can be achieved here too if the selection is made by Parliament as a whole, through a secret ballot.

The policy of keeping politics out of the administrative process in advanced countries is noteworthy. There is a bar on functioning politicians in their Councils. In France as well as in Cambodia, former Presidents of the republic are ex officio members of the CC but even they are shut out, if they remain politically active. Three of the highest ranking politicians are members of our CC. The impact of their presence at a council meeting on their ordinary co-members needs no underscoring. Can independent, balanced and fearless decisions be taken in such an inhibited environment?

The way forward
It is not proposed to decry the attempt being made under the 19th Amendment to demolish the power concentrated by the 18th Amendment in the hands of a single individual. It is commendable that such autocratic power has now been diffused though the applied solution has resulted in the problems discussed above. However half a loaf is better than no loaf and we do not have to throw away the baby with the bath water. What needs to be done is to remove the bath water and place the baby on a sanitized cot. Even that may not be done immediately in the middle of the process that is now in hand, for it would be unwise to change horses in midstream. The ideal occasion to rectify the shortcomings will be the promised promulgation of a new Constitution.

It is earnestly hoped that the following considerations would engage the attention of the framers of that document.
• An independent “Constituting Council” will be established to perform the tasks now entrusted to the CC
• It shall not include any politician currently in practice
• All members of the Council shall be leading lights of their respective professions, vocations or interest groups with deep knowledge and wide experience
• They shall be recommended to Parliament by a Collegium representing seats of learning, public interest bodies, professional associations etc.
• If the nominations are to be made or ratified by Parliament and other political institutions, they shall be made by secret ballot and no individual or office shall be associated with the process
• No nominator shall sit in the Council on par with his nominees
(Colombo Telegraph)