A constitutional sham

Politicking with every aspect of life and law in the country has become a hallmark of the incumbent administration. In their desire to retain power and ensure their loyalists are in positions of influence, those who walk the corridors of power have proven themselves willing to make a mockery of even the most sacred and binding law of this land – the Constitution.
The case in point: the fracas over the appointment of the Constitutional Council.

In a rare moment of unity, all parties in Parliament in the year 2001 mooted the 17th Amendment to the Constitution which paved the way for the setting up of the constitutional council, chaired ex officio by the Speaker and comprising a presidential nominee, the Prime Minister and the Opposition Leader. The Council would also comprise a nominee of the minority parties in Parliament essentially making it a truly all party body. The Council would be responsible for appointing heads to the essential commissions; elections, police, public service and bribery and corruption. Each of these commissions would be directly responsible for appointments, promotions and investigations within their area of jurisdiction. The end goal: to ensure that political interference in the appointments to these vital state organs are minimised and eventually, completely negated.

Instead, today’s ‘commissions’ are the epitome of what the 17th Amendment was essentially introduced to prevent. The National Police Commission is effectively defunct, its chairman appointed by the President, as was the current Inspector General of Police Victor Perera, in direct violation of the 17th Amendment. The Election Commission (strategically) was never constituted and the ailing Dayananda Dissanayake continues as Polls Commissioner despite repeated pleas from the man to be released from his duties. But since Dissanayake’s release can be permitted only after the appointment of the independent Elections Commission, his appeals have fallen on deaf political ears. The only functioning commission at this juncture is the Public Services Commission (PSC) which continues to make appointments and promotions to the public service and, according to sources close to the commission, in the habit of sending letter after letter to the cabinet of ministers informing them about their continuous violation of the Constitution each time a political appointment is made by a minister or the President bypassing the PSC. Essentially, a trend set by the previous Kumaratunga regime to disregard the stipulations of the 17th Amendment has been carried forward admirably by the Rajapaksa administration.

The dispute over the appointment of the current Constitutional Council whose term lapsed in March last year has been a real comedy of errors. After the minority parties disagreed for months on end about their nominee, giving the government an excellent excuse for not accelerating its establishment, when the smaller parties agreed upon the name of the former Auditor General Mayadunne, the government, predictably, has kicked up a fuss. In a pathetic attempt at making a case, the government has claimed that Mayadunne cannot be appointed to the Constitutional Council because of a position he holds as special representative to the UN. Ironically, the minority parties chose a nominee whose integrity is legendary. What they perhaps did not realise is that this is exactly what the government was dreading.

And so, more delaying tactics have been employed. In the meantime, the vital arms of the state are being filled with political henchmen who will put their political loyalties above and beyond the interests of the state and the people they serve above all else. It is in the government’s best interest to leave the Constitutional Council hanging and delay the key appointments to the Council for as long as possible. The real tragedy however is that the opposition parties are doing very little to challenge the administration on this score.

The solution to the crisis of the CC would seem one of the simplest ones, if one were only to pay attention to the crux of the problem. The setting up of the council and then the commissions that function under its umbrella has been set out in the supreme law of the land. All appointments made outside the jurisdiction of these commissions, (i.e: the political appointments) lack legal validity. In fact, as the PSC has repeatedly pointed out to the cabinet of ministers, the appointments made by politicians to these vital public service sectors are a direct violation of the 17th Amendment, leaving the state wide open to legal action that would reverse these decisions forthwith. The simplest thing to do therefore would be to take the matter before the courts and for the people, or the opposition on their behalf to seek legal redress and put a stop to these illegal appointments without delay. Thereby, although the Constitutional Council would still be defunct if this current disagreement continues, the government would find its wings clipped when it comes to making ad hoc appointments to the police and public service in contravention of the 17th Amendment.

When a system does not seem to be working, the people must then force it to work. An opposition with some degree of interest in the matter would have got the job done a long time ago. Instead, one of the only steps Sri Lanka has taken towards effecting good governance in recent history has been turned into another parliamentary comedy benefiting only those who seek to thwart the will of the people and cling to political power as long as they can.