The Constitutional Council Fiasco
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by Dr Nihal Jayawickrama-February 6, 2016, 7:42 pm
The Constitutional Council was hailed as the principal and singular achievement of the Nineteenth Amendment to the Constitution. Its duty was to recommend to the President fit and proper persons for appointment to the independent commissions established under the Constitution, and to approve or reject persons recommended by the President for appointment to certain important scheduled state offices. What the Government promised was a Council consisting predominantly of independent persons of eminence and integrity who were not members of any political party. What came forth, after the amending bill was mutilated in Parliament, was a Council in which the overwhelming majority were active politicians. This was compounded by the appointment of two Ministers to the Council, thereby creating an obvious conflict of interests. Be that as it may, several questions now arise in regard to the performance of the Council so far.
Duty to formulate procedures
The first task of the Constitutional Council, as prescribed by the Constitution, is to "determine the procedures to be followed in regard to the recommendations or approval of persons suitable for any appointment". These "procedures", in the form of rules, are then required to be published in the Gazette and placed before Parliament within three months of such publication". In other words, these "procedures" are required to be made public and then approved by Parliament. As far as I am aware, that has not been done. In the absence of published "procedures", one is entitled to assume that the Council, acting in secrecy, is simply rubber-stamping executive decisions. That was neither the intention nor the promise.
"Procedures" are a requirement in any institution, and a mandatory constitutional requirement in the case of the Constitutional Council. For example, in the absence of such "procedures" how did the Council select and recommend "fit and proper" persons for appointment to the independent commissions? Anecdotal evidence suggests that nominations were sought by a parliamentary official from certain professional bodies. Other such evidence suggests that certain ministers and high parliamentary officials sought curriculum vitae from favoured individuals. How did the Council process this plethora of applicants? Did it interview all of them, or any of them? Did it even interview the individuals it ultimately recommended to the President? If it did not, how did it satisfy itself that the persons it recommended were "fit and proper" for the relevant commissions?
