If Constitutional Council is bad, what is better?

By Gamini Abeywardane

A debate over the constitutional council was triggered by President Maithripala Sirisena’s angry remarks criticizing the Constitutional Council following his disagreement with it over some key judicial appointments. Some people who are not happy with it for whatever reasons, have gone to the extent of even calling for its abolition.

But the million dollar question is: What then is the solution? Are we to go back to the eighteenth amendment giving all powers to one person?  Having seen the ugly side of the eighteenth amendment all major political parties agreed to introduce the nineteenth amendment and it is unlikely that there will be any compromise on that.

Maithripala Sirisena

However, following the recent debate on the Constitutional Council in the Parliament some politicians have now proposed a reduction in the number of parliamentarians in the Constitutional Council, while some others have gone to the extent of proposing completely an independent body without any political party representatives in it.

Original draft

In this regard, it is worthwhile to re-examine the original Nineteenth Amendment Bill that was presented in the Parliament in March 2015 and the debate that followed.The original bill proposed a ten member Constitutional Council consisting of the Prime Minister, the Speaker, the Leader of the Opposition and seven other members who were not supposed to be Members of Parliament.
The seven independent members were supposed to be: One person appointed by the President; five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition; and one person nominated by agreement of the majority of the Members of the Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong, and appointed by the President.

The bill also spelt out that the seven persons so appointed should be persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party. In short, the idea was as far as possible to depoliticize the process of appointing members of all the independent commissions operating under the Constitutional Council.

The unfortunate thing was these provisions were vehemently opposed by members of the Opposition who demanded a council with a majority of Members of Parliament, perhaps because they were against the inclusion of civil society members due to reasons best known to them.

Dinesh Gunawardena

Opposition members Dinesh Gunawardena and Vasudeva Nanayakkara at the Committee Stage debate strongly opposed the idea of having a majority of civil society members in the Constitutional Council and instead wanted seven out of its ten members to be Members of Parliament.

Vasudeva Nanayakkara

Amidst these objections it was difficult for the government to obtain the required two-thirds majority to pass the amendment and as a compromise it was agreed that out of the seven members only three members should be from outside the Parliament.

If not for this situation, the Constitutional Council would have had a set of distinguished people from outside the Parliament as the majority of its members resulting in a depoliticized Constitutional Council. It is rather ironic that the very people who were against the appointment of independent members are now asking for reconstitution of the Constitutional Council to include more independent members.

Mechanism to prevent deadlock

Then there is a need to remedy the situation which led to the current deadlock in appointing the President of the Court of Appeal. Such inordinate delay in making vital appointments can erode the confidence of the people in the system and therefore it is necessary to have a reasonable mechanism to avoid a deadlock arising from a disagreement between the Constitutional Council and the President.

Another allegation made by the President is that the Constitutional Council has not given any valid reasons when it rejected the names of some of the judges proposed by him for promotion to the higher judiciary. There had also been augments to the effect that in a democracy these processes should be transparent and people have a right to know the reasons for such rejections.

But it should also be noted that promotions in any organization are not a matter of right for the employees, but to some extent a matter of discretion on the part of the management and it’s more so when people are promoted to high positions. Judges of superior courts and other key officials in the government like the Attorney General, the Inspector General of Police also fall into this category.

Then, how practical it is to give reasons publicly for rejecting some nominees? One may argue in favour of such transparency, but disclosure of one’s unsuitableness may trigger unwanted public discussion over these appointments while also causing damage to persons whose names have been rejected.

Such discussion could be very much like allowing public discussion on the correctness of judicial decisions and the end result could be hampering the smooth functioning of the system itself. Key persons in the country publicly criticizing these appointments will erode the people’s confidence in the system.

Public discussion of such matters may be common in the US and some countries in the West,but in our country it could be treated as prejudicial to the smooth functioning of the court system particularly in the context of the culture in our country.

Seniority and promotions

A certain minimum number of years of service will be necessary for a promotion or appointment to akey post. However, seniority alone should never be the criterion for appointments or promotions in any institution, be it in the judiciary, the state sector or the private sector. Seniority has to be considered along with other factors such as competency, integrity and educational qualifications. If seniority alone can be the only criterion promotions can be almost automatic and there will not be any need for the Constitutional Council or the President to get involved in such appointments.

The signs are that the ongoing process to introduce a new Constitution will take longer than anticipated. However the current deadlck with regard to some key appointments have to be resolved without delay.

The best option now is for all political parties to agree without delay and introduce the same provisions with regard to the Constitutional Council contained in the original nineteenth amendment bill. That will ensure a depoliticized constitutional Council which will include seven independent members who are not politicians, so that spirit of the nineteenth amendment as envisaged by those who advocated good governance will be retained.