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by AMRIT MUTTUKUMARU

The Constitutional Council (CC) established with much hope to bring about some sanity to the madness that passes off as governance in this country which has virtually brought this country to a state of relative anarchy, seems to have fallen victim to the very evil it was supposed to exorcise which is the politicization of almost all key institutions mandated to be a check on abuse of power and corruption by our politicians. It was established under the 17th Amendment under the previous PA administration, largely due to pressure from the then opposition spearheaded by the UNP ostensibly to ensure the genuine independence of key public institutions such as the police, elections, public service, media, judicial, human rights as well as bribery and corruption commissions.

This writer in a previous article in the Sunday Island of 11th August 2002 when making a plea that the CC should function as a moral force in this country observed that the success of the CC" will also be dependent on the will and commitment of the government, the calibre of people in the commissions and the vigilance as well as assertiveness of civil society- particularly the more influential sections. On the basis of past track record, there is no cause for optimism on all these counts. For example, where was the vigilance let alone the assertiveness of those eminent personalities now manning the Constitutional Council in the face of all the horrendous abuse of power, corruption and inefficiency of successive governments resulting in the pathetic situation in the country today? " Very sadly, these fears seem to be a reality today precisely for these reasons identified.

Let alone being a moral force and providing leadership to oppose abuse of power and well documented corruption by those in authority be it the government, public or private sectors, the CC itself very tragically seems to be guilty of perpetrating its own brand of abuse of power and unprincipled conduct. Its nominees to the purported independent bodies also seem to follow the old boy or in some instances the old girl network which is the bane of this country guaranteed not to rock the status quo. Not surprisingly, none of the independent commissions are functioning in any meaningful manner. This includes those already constituted as well as those not yet constituted due to essentially bizarre administrative reasons. Surely any administrative constraints whether bizarre or otherwise should be strongly canvassed for remedying by the CC itself.

Immunity for the CC

Virtually the first order of business of the CC was its move through the 18th Amendment to ensure immunity to its members for their actions in respect of any legal challenge to their decisions. Even the limited legal immunity granted to the CC by the 17th Amendment seems to be insufficient for them. The Supreme Court in a rare instance of principled determination held that the Bill was inconsistent with the constitution since it even went beyond the immunity granted to the executive president! Apart from this, it seems untenable vis-a-vis the central premise of the 17th Amendment which hinges on equality, transparency and accountability. This proposal of the CC is preposterous since it is fully aware that the immunity given to the executive president itself is a tragedy which has made no small contribution to our appalling state of governance and must be done away with immediately. The confidentiality being proposed to the deliberations of the CC also militates against the premise of transparency. What are they so frightened of?

Conflict of Interest

It is noted that almost all appointees to the CC are 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. This is manifest in its initial conduct.

Even some of the CCs nominations to certain commissions are replete with potential conflict of interest which can be exploited to further the commercial interests of the rich NGOs for all practical purposes headed by some commission members. As a matter of further interest, even their much flaunted international positions have the potential for such exploitation. A cursory examination would reveal the truth or otherwise of this assertion. One could merely speculate on whether any members of the CC itself derive any slice of this action!

Conclusion

It is very clear that the objectives of the 17th Amendment are not being met. The main reason for this seems to hinge on the Constitutional Council itself being afflicted with the very disease it was supposed to cure - the politicization of almost all key institutions. Another possible reason could well be deficiencies in the 17th Amendment itself. The CC was supposed to be the change agent and moral force which working through the independent commissions it was nominating was to act as a brake on abuse of power and corruption by our politicians. It will be obvious to anyone that not only has there been no improvement since its formation, but on the contrary, the situation may have even deteriorated. This is certainly true in the breakdown of the rule of law. None of the independent commissions are functioning in any meaningful manner.

The Police Commission is a conspicuous case in point. All around us, we witness with sickening regularity politically motivated murders and other forms of crime in broad daylight in the heart of cities and towns. The impunity surrounding all this is shocking. The leaders of civil society just do not seem to care. The police seem helpless. The CC itself seems to be in perpetual slumber mode! Unjust and demoralizing laws such as the unprecedented (anywhere in the world) multi-Billion Rupee worth blanket package of amnesties in favour of affluent and influential lawbreakers for income tax, exchange control, excise and customs violations have been enacted with impunity. There is also a proposal to smuggle in some uncivilized features of the Prevention of Terrorism Act as part of normal law.

This does not seem to bother even the Human Rights Commission. Our record size 69 member ministers of various descriptions and the unprecedented perks of our parliamentarians does not seem to concern anyone either. Where do we go from here? One thing this writer is sure of is that we are fast hurtling into very dangerous ground which can only be described as anarchy. In fact it is already upon us in some measure. The only possible manner by which this country could be pulled back from the brink is if our leaders of civil society for once step out of character and exert meaningful pressure on our unprincipled politicians. But surely isn't it asking too much of them since they themselves seem to be part of the problem?

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