Constituting the ‘Constitutional Council’ and ‘Civil Society’ Reps

Passing of the 19th Amendment in the most disgusting manner with unwanted, undemocratic provisions smuggled in was yet hailed as democratic victory highlighting the Constitutional Council (CC) and Independent Commissions.
Importance of the CC and its independence was nevertheless in question from day one.
The political rivalry that flickered in the cold between President Sirisena and the UNP Government of PM Wickremesinghe from early days of the Yahapalanaya Government that caught fire rapidly has left important appointments to the judiciary at bay. This led President Sirisena to condemn Independent Commissions, the CC and its criteria for selection in his speech made to Parliament on  February 5, 2019.

Former President Rajapaksa who kept all Independent Commissions ineffective using ambiguity in the 17th Amendment and then brought them under his thumb with the 18th Amendment, has also joined President Sirisena in condemning the CC.
Speaker Karu Jayasuriya as Chairman of the CC responded to President Sirisena’s allegations with a statement made in Parliament the following day. He explained the criteria in selecting nominees for posts the CC is mandated to recommend under Article 41(b) and in approving nominees sent by the President under Article 41(c). The Speaker told parliament, (quote) It shall be mentioned that seniority, integrity, independence and impartiality of persons are considered in addition to the said guidelines in appointing persons to respective positions (unquote).

He also said, a Report of the CC with guidelines for selections was tabled by him on 08 December 2016 and promised (quote) the report containing the aforesaid guidelines would be tabled in Parliament tomorrow for the information of Hon. Members (unquote).
These guidelines are not in the public domain yet. Speaker’s repeated tabling of the ‘Report with guidelines’ only proves MPs are not serious and have not debated and endorsed them.
That apart, the “guidelines” and other criteria mentioned by the Speaker have not been always adhered to. There is also the political factor that would not endorse Speaker’s lavish praise for the CC and the Independent Commissions (the HRCSL and the RTI Commissions being very rare exceptions). The method of constituting the CC with a dominating political presence itself negates Speaker.

Members of the first CC established in September 2015 for three years clearly prove his statement that all political parties in Parliament are represented in the CC with no majority to any, is baseless. Seven politicians in the first CC were Speaker Karu Jayasuriya, PM Wickremesinghe, Leader of the Opposition Sampanthan as ex-officio members, with Minister Champika Ranawaka nominated by President, Minister Wijedasa Rajapaksa nominated by PM and then replaced with Thilak Marapana on December 29, 2017, Minister John Seneviratne nominated by the Leader of the Opposition and VijithaHerath agreed upon by minority parties not belonging to the main opposition party. The three ‘civil society’ members were Dr. A.T. Ariyaratne, Dr. Radhika Coomaraswamy and Shibly Aziz.

The CC is the remedy agreed upon in society to de-politicise the State and appointments to high posts, through Independent Commissions. It is, therefore, a total contradiction to have seven out of ten CC members appointed from parliamentary politicians. Of them in the first CC, four including the PM were Cabinet Ministers, who would never compromise political interests of their government with the independence of Commissions and high posts. Worst is when a quorum of five allows the four ministers and their erstwhile ally Sampanthan as Leader of the Opposition to sit with the Speaker if they want to, to conduct business and decide as the CC. Speaker Jayasuriya, PM Wickremesinghe, Ministers Ranawaka, Wijedasa Rajapaksa and Marapana who later replaced Rajapaksa, are all UNP members in Parliament who contested under the symbol ‘Elephant’.

• Importance of the CC and its independence was nevertheless in question from day one

• Rivalry between Govt. and President leaves important appointments to the judiciary at bay

• Speaker’s repeated tabling of the report only proves MPs are not serious 

Though on the Speaker’s chair Jayasuriya is expected to be ‘independent’, his role during the October fiasco, was without a doubt played out in favour of the UNP government and Wickremesinghe’s premiership. It goes to prove, when it comes to real politics, Jayasuriya is not the ‘independent’ Speaker he should be, but all time UNP member, eagerly waiting on the wings to take flight as the next UNP presidential candidate, given an opportunity.
If anyone says all that was a necessary compromise to replace the 18th Amendment with the new 19 Amendment, it only means any junk is ‘good junk’ in replacing Rajapaksa.
Yet, the 18 Amendment painted as a frighteningly huge vulture carrying the provision for a never-ending Rajapaksa dynasty, was only xenophobia. At the 2015 January, presidential poll Rajapaksa was ousted with a popular vote after his second term. The 18 Amendment meant nothing.
There was apparently no political compromise on the 19 Amendment other than to allow President Sirisena to continue as the “executive” he was, but with an irrelevant clause that says he would be responsible to parliament. What was achieved in the bargain was a Parliament that could not be dissolved for 04 years and 06 months without a 2/3 majority that keeps this Wickremesinghe government going.

Much of the contradictory provisions out of over 70 clauses that made the 19th Amendment, were smuggled in a mighty hurry in the most unparliamentary manner led by the expert on “Latimer House” Principles and went beyond that compromise. 
That was also how the CC was turned into the opposite of what it has to be; the mechanism for depoliticising of the State and high posts.
Over three years ago on  October 27, 2015 I wrote for the website “Ground Views” (quote) There are serious allegations against persons appointed and in how the appointments were made thus far to the four Commissions established. Two members appointed to the Police Commission are far too old to be efficient and credible members in any public commission with a very heavy responsibility. In fact, one is alleged to have been accused in a bribery case during the period of Ms Nelum Gamage as DG of the Bribery Commission. Another appointee to the CIABoC itself is questionable say lawyers at Hulftsdorp. Another issue is the appointment of lawyer Gazali Hussain to the HRCSL who was the counsel for former Eastern Province CM and TMVP leader Sivanesathurai Chandrakanthan better known as Pillaiyan. The issue is not about the right of Pillaiyan to retain a lawyer of his choice and that of a lawyer to appear on behalf of any client he or she wishes to, in his or her professional career. The issue is in appointing a lawyer to the HRCSL who appears for clients accused of violating the law, human rights and investigated for extrajudicial killings, ……(unquote).

That was a CC appointment to SL Human Rights Commission of all Commissions.
In the same article, I raised the awful conduct of those who sit in the CC as representatives of the ‘People’. (quote) Far worse is the role of the three members, A.T.Ariyaratne, Ms.Radhika Coomaraswamy and justice Shibly Azeez, who have taken up their appointments as members of the CC to represent the people…..They do have collective responsibility……. Yet that collective responsibility does not run as far as that of the cabinet of ministers if they honestly wish to differ. For their first responsibility is to the people they have constitutionally accepted to represent in the CC. People also have a right to know from these three members in the CC if the allegations made are true or not. It is their sole responsibility to tell the people the truth about all appointments made thus far…..(unquote).

But they did not and nor do the present three members representing the People.
It wasn’t just a ‘one-off’ case and was not the only betrayal by the CC. Recommending DIG Pujith Jayasundara for the post of IGP in April 2016 was far more dubious and had no guidelines or selection criteria the Speaker kept stressing. In a very incisively drafted public statements backed by strong reasoning by the activist group Decent Lanka 2015 in which I played the key role, we said the selection and appointment of the IGP ‘was a historical error’.
Selection of the new IGP was decided on a secret ballot in the absence of two of the three civil society representatives.
It wasn’t only the irresponsibility of civil society members Radhika Coomaraswamy and Shibly Aziz that was in question.
We questioned the selection criteria that completely contradicted the selection procedure adopted two months before in recommending the Attorney General. 
This time, calling for personal profiles from the three DIG candidates nominated by President, they called for interviews but were not interviewed.
Firmly disagreeing with the PM’s proposal in using the Secret ballot, we said:
“What the people need from the Council is not a majority decision in appointing a person to a high position, but the appointment of the right person through a credible, open procedure.” We couldn’t but call it ‘nothing but sheer political bluffing’.

The ‘civil society’ appointees in this present CC are no different from the three members in the first CC.
They keep compromising with the Government’s political needs and therefore don’t say where they stand on any of the conflicting, controversial issues on recommendations and nominations.
They are therefore far worse than politicians we know are corrupt. What takes place in the CC as said nearly three years ago is nothing but sheer political bluffing and the three ‘People’s Representatives’ are ‘dumb as dead’ on all crucial issues.
It has little to do with what the Speaker told Parliament about guidelines and selection criteria. It is the Taxpayer who has to shoulder all that bluff.