Our Constitutional Council (CC) is the product of an extremely rare moment in our post-independence political history at which legislators of all hues arrived at a consensus. Unfortunately its efficacy has been retarded by undue haste and amateurish handling in creating it, as shown by its shaky existence. While the CC has suffered the lack of labour and concentration of a Cesarean birth, its proposed reform is struggling to be born for a long time in a select committee of Parliament.
A CC is basically a French idea. The French Constitutional Council (Conseil Constitutionnel) was established by the Constitution of the Fifth Republic in 1958. The idea of a CC is alien to common law countries headed by the United Kingdom. Our own CC is limited to the narrow task of creating and supervising the Independent Commissions and advising the President on top level appointments. Essentially it is a clearing house. In fact many common law countries entrust such establishment decisions to the chief executives at different levels or to bodies created by the Head of State or relevant Ministers.
Status and Impact
The PSC in Canada and Australia is a ministerial creation. The Indian Election Commission is appointed by the President. The absence of a CC in these countries has not been a felt vacuum. Creation of a CC in this country appears to have arisen essentially from suspicion and distrust of the integrity of the chief executive. But the appointments made after the creation of a CC do not appear to show a conspicuous improvement on those made before. Nevertheless the clamour for a CC persists despite its limitations noted below, perhaps because of the halo initially created around it as a ‘progressive’ measure or is it reluctance to identify the King’s new clothing?
The French CC is not burdened with house-keeping roles. In France the CC is the highest constitutional authority entrusted with the duty to ensure that the principles and rules of the constitution are upheld. The French CC has the power to decide on the constitutionality of legislation. It supervises elections, presidential and parliamentary and ensures the legitimacy of referendums. It also issues the official results of elections and ensures proper conduct and fairness at elections. The second area of Council power is the interpretation of the fundamental meanings of the constitution, procedure, legislation, and treaties.
These powers are elaborated in some detail in order to show comparatively how insignificant the role of our CC is. In Cambodia, the President of the CC has rank and prerogatives equal to those of the President of the National Assembly. Members have rank and prerogatives equal to those of its Vice-President. This indicates how seriously other countries take their CC and treat its membership, thus highlighting its significance which is principally based on the important role it plays in the body politic. The similarity between the French CC and ours appears to be only in name.
The main purpose behind the creation of the Sri Lankan CC is said to be to install an entity that can function with independence. But the manner in which the members of the CC are to be selected belies that claim. Three of its 10 members are leading politicians. One is a nominee of the top politician of the land, the President. Five others are nominated by the two politicians leading the two sides of the House. The tenth member has to be a nominee of the minor parties in Parliament, a provision that has opened a can of worms and virtually held up the appointment of the second CC for more than two years.
Not satisfied with the involvement of politicians on a party basis, Article 41A (3) of the Constitution introduces a communal element to the nomination by requiring three of the members to be from the minority communities thus introducing a sectarian bias to the CC ab initio, perpetrating a parochial division and nurturing a mindset that calls for elimination in the task of nation building. Besides what practical impact can three members of the minorities have against seven of the majority? The distinction only serves to dampen objectivity on both sides by having to play their implied role of safeguarding sectarian interests.
Method of Nomination
The above method of nominating members to the CC may be usefully contrasted with similar provisions elsewhere. In France the President of the Council is selected by the President of the Republic. Three members each are appointed by the Presidents of the Republic,Â the National Assembly, and the Senate. In Cambodia, three members are appointed by the King while the National Assembly and the Supreme Council of Magistracy elect three members each.
In the Republic of Kazakhstan the Chairman of the Constitutional Council is appointed by the President of the Republic and two members are also appointed by him, two by the Chairman of the Senate and two by the Chairman of the lower house of Parliament. What is noteworthy is that in these countries the relevant bodies make the nominations as an entity and not on a party or communal basis and no politician is personally involved by office with the nomination. The same measure of a-political and impersonal nomination can be achieved here too if the selection is made by Parliament as a whole, through a secret ballot.
Note also the bar on functioning politicians in the above Councils. In France as well as in Cambodia, former Presidents of the republic are ex officio members of the CC but even they are shut out if they remain politically active. Three of the highest ranking politicians are members of our CC. The impact of their presence at a council meeting on their ordinary co-members needs no underscoring. Can independent, balanced and fearless decisions be taken in such an inhibited environment?
Article 41A (5) of the Seventeenth Amendment states that the President ‘shall upon the receipt of a written communication of the nominationâ€¦â€¦.forthwith make the respective appointments’. This imperative direction has not been invariably acted upon. The former President ignored with impunity, the nomination of the CC for the posts of the chairman and members of the Election Commission and the impact of that defiance is still keeping a reluctant Elections Commissioner in office long after his retiring age, at grave risk to his health. The ongoing clamour against the delay in appointing members of the second CC recommended to the President, is another instance that casts doubts on the effectiveness of the mandate in the above article.
There is no provision in the Seventeenth Amendment to ensure that recommendations made to the President by the Speaker for appointments are compulsorily acted upon. Thus a President can immobilize by mere inaction an institution boastfully created to be a restraint on him. This deadlock has no remedy. It cannot be solved legally through a writ of mandamus as the President is immune to litigation under the Constitution.
It is but fair to look at this breakdown from the angle of the President. The Amendment gives the President a Hobson’s choice. It makes no provision for alternate nominees. To say the least, it would appear to be discourteous to demand the Head of the State to make an appointment without leaving any discretion in his hands. The mandate makes a rubber stamp of the President. Suppose recommendations made to him for appointment contain an optional list equal to the number to be appointed, the President will be given a decent chance to imprint his personality on the appointment.
Such courtesy would naturally justify more effective constitutional measures to cure a possible deadlock. The President may be given a definite period, say two weeks, within which to make the relevant appointments. He may appoint all the persons in the original list or substitute any or all of them with those in the optional list. In such a background, it would be fair to make provision for a presumption that the President is deemed to have approved the persons in the original list, unless he makes a different appointment before the end of the given period.
Another malaise besetting the CC stems from the lack of confidentiality in the appointment process. It is manifest at present with the hue and cry over certain pending appointments. Institution of the new CC is held up on account of certain protests made to the President by some individuals against the appointment of two persons recommended by the Speaker. Now these recommendations are made through a process prescribed by the Constitution after a long and contentious sifting by all parties in Parliament. The Prime Minister himself is associated with the process of selection. It is logical to presume that he would have informally sounded the President before he agreed to the nominees.
It is proper and prudent that a document prepared with such thoroughness and with the approval of some of the highest dignitaries in the land be kept confidential until the appointments are made. Announcing the names in the recommend list in advance exposes the due process of selection to undue influence. The list is exposed to bargaining by every passer-by, like an article placed in the Mariyakade market. This is tantamount to opening the list to an unofficial referendum. The ensuing objections and protests could keep the CC in abeyance ad infinitum. Although such an impasse could serve the interests of a government prone to corruption and abuse of power, it would defeat the intended purpose of the Seventeenth Amendment.
If we must have a CC, let us see to it that it is properly constituted, adequately burdened and unfailingly effective.