An Utopian failure called Constitutional Council

By N Sathiya Moorthy

President Maithripala Sirisena chose Parliament recently to re-launch his political travel from where he had left it with the initiation of the ‘twin constitutional crisis’ late last year.

In doing so, he once again opened a can of worms, this time targeting the Constitutional Council (CC) – and also the Human Rights Commission (HRC), the latter being an add-on, as if to ‘de-politicise’ his intentions.

It was waiting to happen. Past public discourses on the CC and other ‘high-power committees’ for appointments to top civil service and such other positions across the country were invariably one-sided. They gave the impression that such a scheme for the selection of Supreme Court and High Court Judges and for other major non-political appointments was the best way possible – and was almost flawless.

Apologists of the scheme wantonly forgot that it only shifted the decision-making powers from the President-led Cabinet to another group of people, who were all political nominees. They created a new set of burgeoisis class within a partisan group that they claimed had to be neutralised. The fact remains where members of the high-power committees for such selection were not political appointees, they were politicians, from top to bottom, as with the CC for selecting members of the higher judiciary.

In an era everything Rajapaksa had to go, 19-A provided for reversing the Mahinda-centric 18-A, which abolished the existing CC and such other ‘extra-territorial’ high-power committees at one go. Political and civil society backers of those schemes would not want to ask themselves how and why they could not appoint members to the existing Council pre-18-A, until President Mahinda R intervened and had Parliament scrap it all, at one go.

Conceptually flawed

From the very inception, the concept of an ‘independent’ CC and such other high-power committees was/is flawed. The striking feature is the political nomination of the selection panel members, for which there used to be heavy canvassing by interested persons and groups. They could not have been expected to function ‘without fear or favour’, bias and non-partisanship.

In the overnight forgotten old CC, parties like the TNA and JVP tied for years, for nominating the member chosen by ‘minority parties’ in Parliament. True, 19-A did away with that provision, but there was/is no way one could hope to have non-partisan members to any committee or council, appointed by the political leadership of the day.

If nothing else, those panel members like political leaders, civil servants and celebrities in every other walk of public life barring film personalities, are a product of their times. They are children of the societies that produced them. Films and film personalities, on the other hand, too are products of their times, but film stars, whether M G Ramachandran and Jayalalithaa in the south Indian State of Tamil Nadu, or President Ronald Reagan in distant US, develop a charisma that other political leaders love to be born with.

There is the other major difference. Political leaders still go back to the people for a fresh mandate, periodically – where they are judged by a yardstick, whose measures only the individual voter knows. Civil servants at least go through a process of selection process, interviews, etc. There are also inherent provisions for disciplinary proceedings against ‘erring’ civil servants, and even military personnel. Sri Lanka is no exception.

Yet, the conceptual flaws in the CC scheme are what should matter the most. Under the scheme for filling up various positions in the civil service, including the higher Judiciary, top police and Service jobs, the President is the perceived appointing authority. While he may, under the law and convention, be aided by a team of experts to identify and choose qualified candidates, the qualification of those experts itself is defined, by domain expertise and experience that they may have acquired while (still) in service.

This is not true of the CC, for instance, where the selection panel is weighed in favour of the political class, who not only can take decisions but also influence decisions. The politicians on the panel do not necessarily have to possess any such minimum qualification. Anyway, diverse positions call for diverse expertise for members of the selection panel. Under the original scheme, a medical doctor would not sit on the panel to select an engineer or a school teacher.

At best, a medical doctor may be called upon to certify the physical or at times even the mental fitness of the short-listed candidates. It is truer of a teacher or a lawyer being made a member of the selection panel for selecting an engineer or a medical doctor.

There is a even greater conceptual discrepancy. Common law practices enjoin that the appointing authority should also have the right to terminate the services of the person so appointed, if found unfit under a long list of disqualifications, prescribed at the outset. In the case of CC appointees, the President has to go by the choice of the Council, both in the case of  such appointments as also termination of services, of course after following the ‘due process’.

Right to information

It is an irony of the times that when the Government boasts of piloting the nation’s first Right to Information (RTI) Act, the President, under whose authority and seal that law was enacted, says that the CC has reportedly not provided him with ‘information’ on the reasons for the denial of his choice for higher Judiciary. Speaker Karu Jayasuriya, while defending his right to respond to President Sirisena, also on the floor of Parliament, is not known to have responded to the specific point made out by Sirisena.

It is sad that the CC that was founded to remove controversies of every kind in the appointment to high positions is now caught precisely in the kind of controversy that its very creation was supposed to avert. It is sad that President Sirisena chose the floor of Parliament to launch his tirade on the CC, without setting off a new and healthy precedent of seeking the ‘missing information’ from the Speaker, who is the CC Chairman.

It is equally so that Speaker Jayasuriya too has responded in kind, without taking it all up with the President – as he had done at the height of the ‘twin constitutional crises’. That he too went public on some of the issues at the time does not preclude the need for him to help cool down post-crises tempers, or even initiate the process, if the other party still felt left out.

The denial of information to the appointing authority, if true, is the procedural flaw inherent to the CC scheme, as it was conceived only as a check on the functioning of the President, in his capacity as the appointing authority for those high positions. Sirisena may have a point if any of those denied appointment by the CC after his name has made it to the list, and made known to the public, moved the court, seeking reasons from the President, for denying him the job which he considered himself suitable.

There are other practical sides to the process. One, of course, could be the possibility of such of those denied appointment by the CC after the President had vetted their names at his level, move the courts also for ‘defamation’. After all, by denying them the appointment after the highest constitutional authority had cleared their names, the CC had cast aspersions that were not found earlier. In a way, they too deserved to be given an explanation.

Next comes the question, say, in the elevation lower court Justices to the Supreme Court and the like. If, for instance, a CA Judge was suitable to continue as one under all parameters, how is it that he became less qualified for elevation, compared to such other? Either he should have been elevated or should have been sacked (with retrospective effect?).

It is not unlikely that some of his flaws might not have come to notice earlier, and might have been brushed aside, too. But once they had hit the roof when the case for elevation hit the CC roof, there should be a way out for the CC to direct the President as the appointing authority, to revisit their original appointment or initiate such other disciplinary proceedings as was required.

For the CC to evaluate a sitting Judge for elevation and denying him the higher job, and yet allowing him to continue in the present one is farcical of the worst kind. That having happened, the CC has no right to continue with and under the existing scheme.

The question would then arise as to who would re-visit the case recommended for disciplinary action by the CC, if such powers for recommendation are to be conferred afresh. Could it be the CC, which would then be sitting in judgment over its own recommendations? Could it be another independent authority, not taking orders from the President, as the latter’s original choice the CC had found to be flawed?

In this particular instance, there is said to be at least one case, where the CC originally was believed to have vetoed one of President Sirisena’s nominations but came around on a subsequent occasion. If the President’s Office had provided the CC with additional information, and if it had been acted upon positively, that again is information that should have been made available in the public domain.

Autocratic, anarchist

It is becoming increasingly clear under the existing Sirisena-Wickremesinghe dispensation that a politically weak President and a relatively ‘strong’ Prime Minister are a bane to the nation’s constitutional scheme.  When you have a politically strong President, whether JRJ or Premadasa, CBK or Mahinda R, you call them ‘autocratic’. When you have a ‘weak’ President in Sirisena, whose votes came from everyone else other than the self, the system is slipping towards ‘constitutional anarchy’, if there was/is one.

In the past, the general perception about Sri Lanka’s Executive Presidency was that a ‘strong’ President tended to be autocratic. Hence, there was an increasing need for cutting the Presidency to size. Under the Sirisena-Wickremesinghe duo, the President himself was believed to have surrendered much of the ‘Executive’ part of the inherent powers under JRJ’s personality-centric Second Republican Constitution under the much-touted 19-A.

Sirisena, the ‘weak’ President that he had supposed to have become constitutionally, became politically weaker still when he fell out with the ‘majority’ UNP-UNF constituent in the whimsical ‘Government of National Unity’ (GNU), another creation of the farcical 19-A as the re-created CC. But it is this ‘weakened’ President who has hit out at the ‘supposedly’ stronger political leadership of Prime Minister Wickremesinghe, again and again – or, so is the continual charge against him. The CC is the only next in his offering to the nation ahead of the presidential polls later this year – but need not be the last.

It is already comical for a President without parliamentary majority presiding over a Cabinet of which he is a ‘rank outsider’. Neither can Sirisena have any Bill or motion initiated either by him or the ministries and departments under his direct care, cleared by the Cabinet, nor can the ‘majority’ Cabinet have his final approval without challenge, unless there is something ‘moral’ about the incumbent’s recent initiative to have drug-offenders being executed for the death penalty awarded by courts.

Over and above this, you now have the CC controversy, which is not necessarily a creation of Sirisena, but is inherent to the 19-A ambiguities, which were meant for a President and Prime Minister working in tandem, It was an anomaly inherent to JRJ’s constitutional scheme, and he did not have the vision to look at the CBK-Wickremesinghe kind of possibilities at the turn of this century, far removed from his times.

Most definitely, even his greater genius could not have visualised either a Sirisena-Wickremesinghe kind of cohabitation, worse still their GNU, which was flawed from conceptualisation – and gave away when it had to, after all. If a new Constitution under the duo was supposed to correct all anamolies from the past, you also know where it all was expected to go evne in the normal course from the word, ‘Go’ – and where it stands now.

The CC kind of scheme was possibly a take-off from American scheme of Senate sub-committee hearing for high-level appointments, including for gubernatorial postings, overseas. In a country where an effective two-party system reigns, the dividing-line is thick and strong. Even still, there have been constant and continuing complaints of ‘trade-off’ of some kind or the other. In a nation like Sri Lanka, where ruling coalition keep constantly changing and the GNU only provided for a greater mess on that score, it was a pity that they decided to revive the CC and such other high-power committees, without even thinking twice about the possible negative fall-outs, when everyone new, the positive gains, if any, too were ephemeral at best.

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. Email: sathiyam54@nsathiyamoorthy.com)

2 COMMENTS

  1. There are many inaccuracies and misinformation in the article written by N. Sathya Moorthy. Some of the obvious ones are –
    1) CC is not involved in the approval of nominations for the High Court; it deals only with judges of the Supreme Court and Court of Appeal;
    2) Prior to the 19A (except under the 17A), these appointments were done by the President himself/herself; not by the President-led Cabinet!
    3) His assertion that “the concept of an ‘independent’ CC and such other high-power committees was/is flawed” is itself flawed and represents a lack of understanding of the true constitutional significance for democracy & rule of law! CC is not meant to be an ‘independent’ institution; the composition of CC, whether under the 17A and 19A, is not devoid of active “politicians”; it is obvious to every one. However, what is different from the scenario under the pre-17A and post 18A is that the appointment of judges to the Supreme Court and Court of Appeal was done by an active political personality – the President – in his/her sole discretion; the Cabinet did not play any part in that! Under the 19A & 17A these appointments are & were made by the President but subject to the approval of the nominee by the CC which does not have any single political party having dominance in its affairs.
    4) The judges of the Supreme Court and the Court of Appeal are appointed to their position; these are fresh appointments; they are not ‘elevated’ from the lower courts. If the President nominates a lower court judge for appointment to the Supreme Court or Court of Appeal, the said judge’s suitability has to be considered by the CC and approved, if suitable. Otherwise, it has to be declined. The concept underlying the role of the CC is that these appointments must not be made at the sole discretion of an active politician; but at least acceptable to a group of politicians who belong to different political parties and non-politicians, or at least a majority of them.
    It is no secret that the SC & CA were packed by pliant judges during the MR presidency; if meritocracy had been practiced during that time, the present crisis would not have arisen.

  2. This man does not know what he is doing. He being the so-called president of Sri Lanka does not reign as a president should behave as recent events have shown nor does he know whether he is standing, sitting, sleeping or standing upside down. The worst president Sri Lanka has had so far.

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