To constitute doesn't make it constitutional
Why the Constitutional Council should be called
Casually going through the comments under a featured item titled
"Civil Society Disgraced by Choice of CC Nominees," published in a
popular website recently, 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 class-mate who later entered the
prestigious Foreign Service through the front door and ended up as our
Ambassador in France.
The purported nomination was not worth writing home about because it
was supported by only two of the over 20 million people in this country.
Although I was personally pleased by their expressed appreciation, I
would not have touched the post with a barge pole, even if it was
offered by the entire population. Let me explain why.
Why is it 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 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/her, the council that constitutes commissions is the
'Constitutional Council.' 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 vyavasthâsabhâva,'
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.'
The main purpose behind the creation of the Sri Lankan CC is 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.
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 their sponsors' positions in the long run.
To make matters worse, two of them happen to be ministers currently
holding office. The member nominated by the minor parties would
naturally carry their political flavour.
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 easier 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 mangoes from the resulting tree.
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 bases of its members. On the
one side are 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
majorityin the Council.
In this context, decision by consensus is a foregone conclusion. What
chance would even the most brilliant a-political candidate have to be
selected to a Commission against a mediocre rival from a power block
represented by his selectors?
Thus, the purpose of making the Independent Commissions live up to
their names are defeated at the very beginning by the method of their
creation. What happens under the new dispensation is power taken out of
the hands of a single politician to devolve on a group of them,
marginally broad basing it.
The 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 did not
appear in the past, 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.
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
The PSC in Canada and Australia is a ministerial creation. In
Britain, the Head of the Home Civil Service directly reports to the
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.
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?
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.
The ideal occasion to rectify the shortcomings diacussed will be the
promised promulgation of a new Constitution.
It is hoped that the following considerations would engage the
attention of the framers of that document.
• An independent 'Constituting Council' to be established to perform
the tasks now entrusted to the CC
• It shall not include any politician currently in practice
• All members of the CC shall be leading lights of their respective
professions, vocations or interest groups with deep knowledge and wide
• They shall be recommended to Parliament by a Collegium representing
seats of learning, public interest bodies, professional associations
• If the nominations are to be made or ratified by Parliament and
other political institutions, the relevant decisions shall be made by
secret ballot with no individual or office shall be associated with the
• No nominator shall sit in the Council on par with his nominees