The Liberal Party was the first to say, more than two decades ago, that the Presidency as constituted by J R Jayewardene had too much power. In particular we felt it was wrong for the President to have total discretion with regard to appointments to important positions responsible for making decisions that affected the country at large.
This was not a popular view, and it was only more than 20 years after the Presidency was introduced that the matter reached boiling point as it were. So in 2001, in the last throes of the government President Kumaratunga had set up a year earlier, the 17th Amendment to the Constitution was introduced. But though it was obviously better to have some check on the President, the form this took was confusing, and not in accordance with general political principles.
What it did was set up a body of appointees who had to approve the nominations of the President to individual positions. It also had the unparalleled power of choosing nominees to Commissions, which the President was expected to endorse. This was bizarre, for to confine an elected President in this way, turning him or her into a rubber stamp, is grossly inappropriate. It was not surprising then that President Kumaratunga flatly refused to appoint the Elections Commission that had been selected by the Constitutional Council.
I myself feel that the Parliamentary Council set up under the 18th Amendment was more in accordance with political practice internationally, though unfortunately it did not have veto power. Still, had the Council actually ever met, it could have fulfilled a public purpose in that it could have put in writing objections to nominees of the President. After all in a classic Westminster system, a Head of State who is not elected by the people will not turn down a nominee of an elected Prime Minister. But the Prime Minister is careful to select appropriate people, since a delay, or a simple suggestion that he reconsider, would immeasurably reduce the moral authority of the nominee. In recent years a polite but detailed account of why Mohan Pieris was inappropriate, with for instance the arguments so clearly presented by Nagananda Kodituwakku, would have made it difficult for President Rajapaksa to persist with the nomination.
But, having accepted nomination to the Parliamentary Council – unlike Mr Sumanthiran – neither Ranil Wickeremesinghe nor Mr Swaminathan bothered to attend, and make clear arguments against any nominee of the President. But that is the duty of Members of Parliament who should exercise oversight functions with regard to the Executive. In the United States, for instance, Presidential nominees for important positions have to be confirmed by the full Senate, after hearings by the Committee responsible for the field in which the nominee will function.
I have therefore suggested some amendments to the proposed 19th amendment, to remove excessive authority from a Council of nominees, and instead give veto power, at two levels, to Parliamentarians. When I suggested more responsibility to Parliamentarians, the Secretary of the SLFP noted that today’s Parliamentarians might not be able to exercise such responsibilities actively, given their other occupations. I took his point, and accepted the need for an advisory body. But it still seems to be better for the elected representatives of the people to perform the actual review, and indeed to do the screening themselves.
Instead of the proposed 41A I have therefore suggested the following –
There shall be a Parliamentary Advisory Committee chaired by the Speaker and consisting of twelve persons selected by the membership of Parliament from a list of nominees put forward by members, provided that any nomination should be by at least 10 members of Parliament. The selection shall be by Single Transferable Vote.
(This is to ensure a more representative body. The STC system will ensure that any group of 20 or more members will have someone to represent their interests. I do not think the Prime Minister or Leader of the Opposition should be members, since they should take the lead in the final confirmation hearings)
The Speaker shall be the Chairman of the Committee.
Every member shall hold office for a period of three years etc.
The Committee shall examine the credentials of any members recommended by the President for appointment to any of the positions mentioned in schedule A or to any of the Commissions mentioned in Schedule B. The Committee may, if it is not satisfied with any individual nominee, or any nominee to a Commission, request the President to reconsider.
The Committee shall submit a report on all nominees to the relevant Consultative Committee in the case of the Commissions in Schedule A, and to the High Posts Committee in the case of individuals. The Standing Orders of Parliament shall ensure that the Chairs of all such Committees shall be members of the opposition. Any Member of Parliament may make representations to the High Posts Committee with regard to individuals nominated for positions in Schedule A.
No nomination shall be made by the President except with the approval of the relevant Consultative Committee, ratified by Parliament. The Consultative Committee shall prepare a report on its recommendations to Parliament, incorporating the views of any members who submit written acquiescence or rejection of any nominees.
The Reports of both the Parliamentary Advisory Committee and of any Consultative Committee shall be public documents.
In the event of the Consultative Committee or Parliament rejecting any nominees, the President shall submit fresh nominations. In the event of the Consultative Committee or Parliament rejecting nominees of the President more than two times, the Committee shall select nominees who shall, subject to ratification of Parliament, be appointed to such positions or Commissions by the President.
The Chief Justice and Judges of the Supreme Court
The President and the Judges of the Court of Appeal
(Members of the Judicial Service Commission not necessary given manner of constitution)
The Secretary General of Parliament
The Auditor General
The Attorney General
The Parliamentary Commissioner for Administration (Ombudsman)
Omit the Inspector General of Police, who should appointed by the Police Commission
The Elections Commission (Defence and National Integration)
The Public Service Commission (CC on Public Administration)
The National Police Commission (CC on Public Order)
The Audit Service Commission (CC on Human Rights and Good Governance)
The Human Rights Commission (CC on Human Rights and Good Governance)
The National Procurement Commission (CC on Finance)
The Commission to investigate Allegations of Bribery and Corruption (CC on Justice)
The Finance Commission (CC on Finance)
(This also makes it clear that the default nominees, as it were – those who will be appointed if the President cannot choose acceptable persons – will be chosen by elected representatives of the people, not an appointed body).
Ceylon Today 17 April 2015 – http://www.ceylontoday.lk/51-90160-news-detail-strengthening-parliament-and-avoiding-unnecessary-bodies.html