Hands off the Constitutional Council
The Constitutional Council and the Independent Commissions are on the firing line all of a sudden from no less a persona than the President of the Republic. Joining the chorus in a combined attack is the non-JVP, non-TNA Opposition. Their target is the Speaker whom both the President and the Joint Opposition love to hate these days for clearly political reasons.
If the President is complaining, then that in itself is a sign that the Constitutional Council is probably doing something right. This body was set up under the 17th Amendment (not the 19th Amendment as the President told Parliament this week in a blistering attack) for the very purpose of reining in a runaway Executive President. It was meant to be a ‘check and balance’ to the Executive President autocratic powers that were abused so much at the time that there was a public outcry, an outcry that remains relevant today, to abolish the Executive Presidency.
The Presidents elected at the time believed the mandate they received from the people gave them God-given powers to do as they chose. They did not make their picks of persons to the higher echelons of the State apparatus judiciously. Being politicians, they saw things from their political prisms – and even with the 17th Amendment in place, they managed to get some of their nominees into crucial and sensitive positions like that of Chief Justices.
A change in the old order of giving the President carte blanche, however, stemmed the rot of a string of bad appointments and the President was forced to be more prudent in sending his nominees to a body whose imprimatur was required. No longer were these appointees to be picked at the whim and fancy – or the pleasure of the President.
A Parliamentary High Posts Committee was already in place, but it had played an insignificant role in screening appointees such as secretaries of ministries, heads of statutory bodies and government departments, and the country’s envoys to missions abroad. When names came to them, their approval was merely rubber stamped.
The only qualifications required were the nominees’ medical reports, and income tax file numbers. The committee once rejected a nominee who was suffering from AIDS and another multimillionaire businessman who could not produce his income tax file number. Very recently, an ambassador was eventually approved when the President made a personal appeal to the Parliamentary committee on behalf of one of his nominees.
The Constitutional Council seems to have been made of sterner stuff than a Parliamentary High Posts Committee. Even though the 17th Amendment provided for the Council to comprise 10 members, seven of whom were non-politicians, the 19th Amendment that came in 2015 which was meant to further depoliticise the ‘system’, tilted the balance exactly the other way – there are now seven politicians (MPs) and just three non-politicians in the Council, the politicians, including the President and the Opposition clawing back the powers they lost earlier.
The immediate antagonism stems from some recent rejections of the President’s nominees for senior judicial appointments. The complaint from the President’s side is that he does not know the reasons for their rejection. He says that, because of this, he keeps sending the rejected names back to the Council for re-consideration. But then, there is the President’s nominee in the Council who can keep him briefed. There is, clearly an issue when there is a lack of transparency in the exercise. This has resulted in an exasperated Speaker contradicting claims made by the President. The problem seems to be in the non-existence of a set of procedural rules -- with the public in the dark about the names that go to and fro between the Presidential Secretariat and the Constitutional Council – until it blows up in public with accusations and counter-accusations.
The Council had rules with the criteria for selection drafted by Justice A.R.B. Amarasinghe back in 2015 but they were never gazetted. While the President’s nominees is one thing, the Council receives sometimes as many as 300 applications and there’s an argument if all these should be made public.
In other democracies, they have their own ways and means of selecting – and rejecting Government nominees for sensitive posts like judges of the Supreme Court etc. In United States, there are Congressional hearings which are open to the public, but the voting is on party lines. In India, appointments, promotions, transfers of senior judges are by a Collegium of the five most senior Supreme Court judges. They are expected to have knowledge of the persons and their fitness for the appointment. Yet, transparency on the part of this Collegium has been subject to criticism. In the UK, typically, there is a complicated system of picking senior judges with a Judicial Appointments Commission, interestingly headed by a lay person, changing an almost 900-year system that allowed the Lord Chancellor to choose which judge to appoint. Of course, the Queen continues to appoint the UK Supreme Court (which replaced the House of Lords) judges on the advice of the Prime Minister – from a list provided by a selection committee.
Thus, there is no ‘one-size-fits-all’ perfect system to model Sri Lanka’s selection process of senior judges on. And yet, that there is a Constitutional Council that vets nominations coming from the President is better than having no council screening at all.
Take the recent example of the Presidential Committee that was appointed to vet appointees to the various government institutions like banks, statutory bodies and corporations. We have said this several times in recent weeks, the President himself has circumvented his own guidelines. Some Cabinet Ministers given the legal authority to make appointments ignored these guidelines and went ahead cashing political IOUs and appointing their relatives and friends into directorates under their ministries, whether they were suitable for the post or not. There is a whole lot wrong when individual politicians are given the sole authority to appoint persons to posts for which the public have to pay their salaries and perks.
It is usually the Government that should be complaining that a body like the Constitutional Council is obstructing its path by rejecting its nominees. In this case, it is the President and the Opposition because the political agenda of the President synchronises with the Opposition in the unusual political set-up in this country.
It may not be perfect, but the Constitutional Council and the Independent Commissions have given back the lost backbone to an independent judiciary and independent public service, where obsequious behaviour towards politicians in power required for promotions, is no longer the order of the day.