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 draftIn 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.
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.Vasudeva Nanayakkara |
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.
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