There is a deafening silence from President’s House about getting the Constitutional Council functional. There is absolutely no barrier now to appointing retired Auditor General S.C. Mayadunne, a man with a fine public service track record, to the Council as the nominee of the minority parties in parliament and getting it going. Thanks to the efforts of various public interest organizations led by the Organization of Professional Associations, the nomination was eventually made despite some early hiccups. Now it is up to the president who has for two years enjoyed the privilege of making appointments of his choice to various high places, devaluing the independence of those offices, to demonstrate to the country that he subscribes to the `country before self’dictum to which so much lip service is constantly paid.

When the various political parties represented in parliament united to unanimously enact the 17th Amendment to the Constitution on Sept. 25, 2001, enabling the establishment of independent commissions to administer the police, judiciary, public service and elections, the feel good factor then evident was not to last long. The Constitutional Council that was set up began to soon disintegrate as it was confronted with various problems. Among the first of these was the departure of Mr. H.L. de Silva, P.C. the highly respected constitutional lawyer who was nominated to the Council by President Chandrika Kumaratunga. Some misplaced discussion on whether a member of the CC should continue to practice law resulted in Mr. de Silva, whose membership of the body was an adornment to the Council, adding stature to it in the public eye, tendering his resignation. Undoubtedly various problems arose as a result of the hasty adoption of the 17th Amendment. But unfortunately, in the words of one respected commentator, ``what Sri Lanka witnessed thereafter was not a consensual effort at improving the 17th Amendment but rather its systematic downgrading and devaluing.’’

In terms of the law setting it up, the CC which is chaired by the Speaker of Parliament comprises the prime minister, the leader of the opposition and five persons of high integrity and standing nominated jointly by the prime minister and leader of the opposition, together with one member nominated by the small parties in parliament and a nominee of the president. The failure of the minority parties to agree on a single nominee with differences between the JVP (which some argued should not be considered a minority party as it was elected to the current parliament under the banner of the ruling United People’s Freedom Alliance) resulted in the council becoming functus after its first three year term had been completed. Sadly, the JVP which played a major role in getting the 17th Amendment passed did not see its way in agreeing to a nominee other than its own being appointed on behalf of the minority parties at least in the interest of the greater good of getting the new Council appointed.

But all that is now water under the bridge and it is now the duty of the president to get the Council going as he is constitutionally obliged to do. He is required to do so ``forthwith’’ by the basic law of the land and that must not be forgotten. We have been without a CC for President Rajapaksa’s full tenure up to now, admittedly due to a reason that cannot be fathered on him. Since that hurdle has now been cleared, any further delay in having this vital body functioning will naturally create suspicion of a lack of the necessary political will to get it going, a perception that Rajapaksa himself will not relish, it is incumbent on him to do his part in getting the ball rolling. It is equally incumbent on the various public interest bodies that pushed to have the Council in place should not lay back on their laurels. They must continue to mount pressure to see the task accomplished. Ideally, no sooner Mayadunne’s nomination was finalized; there should have been an official announcement that process of appointing the new Council is underway. But this has not happened. We are happy to see that even business chambers, like the Ceylon Chamber of Commerce, which issued a statement in this regard last week, are adding their voices to the rising chorus demanding quick action on this matter.

Once the Constitutional Council is appointed, and we hope this will happen in days and not weeks or months, the question will arise on the fate of membership of several bodies like the National Police Commission, Public Service Commission, Commission to Investigate Allegations of Bribery and Corruption etc. which have been appointed by the president on a ``doctrine of necessity’’ without nominations from the Constitutional Council. The sensible way forward will be for the members of these commissions to resign and clear the decks for the CC to make its nominations enabling the president to make the appointments in the manner prescribed in the Constitution. It is possible that the CC may well nominate some of those already appointed to these bodies. Be that as it may, what is not wanted at this time is the splitting of legal hairs that will continue to negate the good intentions with which a mechanism to ensure the independence of key offices is subverted.

The whole nation would remember Mahinda Rajapaksa being declared the winner of the presidential election in November 2005 by Elections Commissioner Dayananda Dissanayake. The commissioner, who was a heart patient at the time, appealed to Rajapaksa that he be allowed to retire and the president-elect, with the whole country watching on their television screens, smilingly acquiesced. But that has not happened up to now because the law requires that the incumbent remains in office until an Elections Commission is appointed. Without the CC that has not been possible and the poor man, whose efforts to invoke the assistance of the Supreme Court won him sympathy but not relief (because of the way the law stood) remains on the saddle to this day. And he is now confronted with running a poll in the still troubled Eastern Province!