To constitute doesn't make it constitutional

Why the Constitutional Council should be called Constituting Council:

by Somapala Gunadheera

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.

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 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.

Practices elsewhere

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 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.

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 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, the relevant decisions shall be made by secret ballot with no individual or office shall be associated with the process

• No nominator shall sit in the Council on par with his nominees