Ilankai Tamil Sangam

Association of Tamils of Sri Lanka in the USA

Who Needs a Farcical 'Constitutional Council?

by Amrit Muttukumaru, August 1, 2005

"As an interim measure, until the proposed review is completed and the deficiencies satisfactorily addressed, the following is recommended for immediate implementation in regard to filling current and future vacancies in the CC:

The names of the 7 "persons of eminence and integrity who have distinguished themselves in public life" to be made public, particularly in the print media, with an invitation to members of the public to make written submissions of 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 inefficiency."

The ‘Constitutional Council’ (CC) was established in 2001 under the 17th Amendment in the dying stage of the PA/JVP ‘probationary’ government on a rare occasion of parliamentary consensus which included the main opposition UNP.  The Council was meant to bring about some sanity to the madness that passes off as governance in this country. 

There was high expectation that, with the CC being given the pivotal role in appointing persons to the respective ‘independent’ commissions and to other high State office, the canker of politicization would be removed.  It is this politicization that has led to the appointment of many unsuitable persons, deficient in independence and competence, to high office in key public institutions such as the police, judiciary, elections, public service, bribery and corruption and human rights.  The results are clearly evident in the country’s relative state of anarchy with its rule of law in tatters.  It is this major hurdle that has prevented the country from making all round economic and social progress with equity.

Largely due to glaring deficiencies in the 17th Amendment itself, the Council has fallen victim to the very evil it was supposed to exorcise - the curse of politicization.  Amazingly, the appointment of the entire 10- member CC has been firmly entrenched in the mire of politics.  This, together with the country’s all pervading ‘conflict of interest,’ makes a lethal brew which is a mockery of the salutary intentions of the 17th Amendment.

An implicit responsibility of the CC is to be a strong moral force and opinion leader in the pursuance of the objective of all round good governance.  Its record so far on all counts has been pathetic.  The rapidly deteriorating situation in the country, particularly in regard to the breakdown in the rule of law and the virtual absence of accountability in the public life of this country, which does not exclude the corporate sector, are manifestations of the ineffectiveness of the CC.

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 obnoxious since it violates a basic principle of good governance – accountability – and calls into question the bona fides of the CC members.  What were the CC members afraid of?  Hasn’t the country suffered enough due to the draconian powers, inclusive of ‘immunity,’ given to the office of the executive president?

If not for its serious implications, it is hilarious that some of those on the CC – after completing their three year terms of office – have proffered advise on the deficiencies of the CC. 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! 

None of the purported ‘independent’ commissions appointed under the aegis of the CC are functioning in the manner intended.  Just consider the latest ‘comedy’ of how the Commission to Inquire into Bribery and Corruption went about pursuing its case against a prominent politician, who was promptly acquitted.  In another case, a high profile, controversial bureaucrat was acquitted even before any inquiry due to a mere technicality in the composition of this commission on corruption!  This commission was for a long period also been embroiled in internal wrangling.

Quite recently, the ‘Police Commission’ recommended the promotion of some officers against whom there were serious pending legal charges!  Also not too long ago, the CC 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 well known to be in the narcotics ‘business’!  Some of the commissions have not even been duly constituted! This includes the elections commission.  We even have a situation where the elections commissioner cannot even resign from his post on grounds of ill health until the proposed elections commission under the 17th Amendment is duly constituted.

Under the circumstances, the sudden hue and cry to have the vacancies filled in the CC in the expectation that it will make a substantial contribution to all round good governance is naive.  Given below are some recommendations to address some of the more serious deficiencies of the 17th Amendment.

Recommendations

It is strongly urged that the entirety of the 17th Amendment as a priority be subject to an early review to ensure that it realizes its explicit objective of the depoliticization of all key State institutions and its implicit objective of functioning as a strong moral force for all round good governance with accountability.  Areas for review will include:

1) Political Appointees

All ten (10) members of the CC being political appointees negates the core objectives of the 17th Amendment.  Apart from the Prime Minister, Leader of the Opposition and Speaker, who are ex-officio members, the balance 7 members are political appointees who, as per the 17th Amendment, "shall be persons of eminence and integrity who have distinguished themselves in public life and who are not members of any political party."

As an interim measure, until the proposed review is completed and the deficiencies satisfactorily addressed, the following is recommended for immediate implementation in regard to filling current and future vacancies in the CC:

a) The names of the 7 "persons of eminence and integrity who have distinguished themselves in public life" to be made public, particularly in the print media, with an invitation to the members of the public to make written submissions of 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 inefficiency.

2) Media Commission

Very strangely and significantly, the ‘Media Commission’ which was proposed in the draft of the 17th Amendment has been omitted in the final version.  This is most unfortunate since a truly independent and vibrant media is the ultimate guarantor of individual liberty, democratic values and the rule of law.  Evidently, the status quo would appear to suit many of the participants in the media scene of this country, be it the state or the private media.  Successive governments continue to abuse the state media, which they refuse to divest with impunity.  Key sections of the private media, which are owned / heavily influenced by commercial interests, are not completely free of their own abuses, either.  The recently constituted Press Complaints Commission of Sri Lanka is predominantly under the influence of one large media company and is replete with ‘conflict of interest.’  It is strongly urged that, when the deficiencies of the 17th Amendment are addressed, action is taken to constitute a ‘Media Commission’ to ensure that we have a vibrant and accountable media free of blatant abuse while eschewing stifling regulation.  It should be applicable to both the state and private media.  An aspect of the legislation proposed is on the lines of the mechanism for appointments practiced by the Press Complaints Commission of the United Kingdom to minimize ‘conflict of interest.’

3) Lawyer Predominance

It is noted that almost all appointees 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 most unhealthy 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 initiating much needed legal reforms?

Conclusion

The objectives of the ‘Constitutional Council’ are commendable.  This is particularly so in respect to its explicit objective of depoliticizing the key institutions of State.  Hence, to make this objective a reality, it is critical that those appointed to the CC are persons who have the capacity to deliver this objective.  As pointed out earlier, the possiblity of this is negated since all appointments to the CC are made by politicians.  The challenge is to overcome these obstacles.  It is recommended that, at least until the entire 17th Amendment is reviewed, to address its deficiencies and for urgent steps to be taken as an interim measure to immediately implement the following in regard to filling current and future vacancies in the CC:

The names of the 7 "persons of eminence and integrity who have distinguished themselves in public life" to be made public particularly in the print media with an invitation to the members of the public to make written submissions of 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 inefficiency.

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Posted August 4, 2005