Constitutional Council and the poverty of independence, intellect and integrity

Many years ago, before the 17th Amendment was implemented, I ended my weekly column to the Sunday Island newspaper mentioning the number of days since the said amendment was passed and asking why the independent commissions had not been appointed. Around the same time, I pointed to the various flaws of the 17th Amendment and urged lawmakers to correct the same. Some years later, my friend Pradeep Jeganathan, who is one of the best minds we have and honourable to the core, remarked casually that integrity is what counts in the end. I believed institutional arrangements and relevant laws would help put people with integrity in the right positions. I have my doubts now.  

This is about the Constitutional Council as per the 19th Amendment of the constitution. The 19th Amendment is flawed and the process which brought it to light stands as a prime example of how not to do constitutional reform. The entire project was marked by the requirements of political expediency, absolute sloth on the part of the lawmakers and a veritable thumbing of the nose at the observations of the Supreme Court.   

Mahendra Mapagunaratne elaborates on the last of the above thus: ‘What now happens is after a Parliamentary Bill is given the green-light by the Supreme Court after a judicial review, crafty MPs add/remove various clauses to the original Bill post judicial review. At present there is no mechanism to challenge the spurious additions/omissions post judicial review as it becomes fait accompli once the Speaker signs the Act into law and courts are helpless despite prima-facie sharp-practice by Parliament.’  

He therefore proposes the following amendments: ‘(1) Any citizen could challenge an Act passed in Parliament in court within 14 days of such Act passing in Parliament, and (2) The Speaker shall sign Act into law only after the lapse of 14 days of such Act being passed in Parliament.’   

In other words citizens would get two opportunities to test parliamentary action in court, the Bill stage and the Act stage, and, as Mapagunaratne observes, ‘completely eliminating 19A /Local Government (giving more female representation) type hoodwinking by any Parliament in the future.’  

The entire project was marked by the requirements of political expediency, absolute sloth on the part of the lawmakers and a veritable thumbing of the nose at the observations of the Supreme Court

Back to the Constitutional Council. The composition, as per the 19th, is as follows: the Prime Minister, the Speaker of Parliament, the Leader of the Opposition, one Member of Parliament appointed by the President, five persons appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition of whom two persons shall be Members of Parliament, one Member of Parliament nominated by agreement of the majority of the Members of 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. 

These non-parliamentarians are required to be persons of eminence and integrity who have distinguished themselves in public or professional life and are not members of any political party.   
Of the ten, then, seven (that’s 70%) are politicians and we all know the extent to which these worthies satisfy the requirement of ‘eminence, integrity and distinguishing themselves in public or professional lives’! Little is known of Naganandan Selvakumaran, one of the non-politicians in the Constitutional Council. Jayantha Dhanapala, a former diplomat, was once the UN Under Secretary General for Disarmament Affairs while Javed Yusuf served as Sri Lanka’s Human Rights Commissioner and the Ambassador to Saudi Arabia.   

If it is to be independent then the process of selection should be amended to obtain independence and not frill

Yousuf has a long association with things political as does Dhanapala, a key name in a dubious front called ‘The Friday Forum’ which bends backwards to support the United National Party, although they are cute enough to couch support in ‘academese’. Both have been openly political, regardless of their conduct as professionals, which, at least in Dhanapala’s case can be argued to have been ‘eminent’. Among their predecessors, there was Radhika Coomaraswamy, a political creature if ever there was one.   

So what makes this body ‘independent’? Very little, sadly. Their conduct in terms of nominating persons to the independent institutions have betrayed either political bias or utter incompetence. By and large, in practice, they are answerable to their political masters. If they claim they are in fact ‘independent’ then the question has to be asked, ‘who on earth are you answerable to?’ Certainly not the people of this country.   

The issue is simple. If it’s not ‘independent’ it has to be a meaningless frill that makes mockery of independence and indeed the very purpose of such an institution. If it is to be independent then the process of selection should be amended to obtain independence and not frill. 

As of now, it’s a joke and a farce. And it is laughable when the likes of Gamini Viyangoda praises the 19th Amendment considering it includes text which claimed to re-instate independent commissions, did so by effectively subverting independence!   

Where’s the integrity? How is it obtained? Certainly not through the 19th Amendment. We didn’t need the imbroglio regarding judicial appointments to figure this out

Where’s the integrity? How is it obtained? Certainly not through the 19th Amendment. We didn’t need the imbroglio regarding judicial appointments to figure this out. It was immediately evident when the 19th Amendment was passed. All one had to do was check the paragraphs on composition. 

It is scandalous that ‘eminent persons’ such as Dhanapala, Coomaraswamy, Yousuf and others did not feel compelled or lacked the integrity to draw from the composition-issue when deciding to accept their respective positions in the Constitutional Council. That’s poverty ladies and gentlemen; poverty when it comes to independence, intellect and integrity.  

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