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A ghost Constitutional Council?



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A couple of days back, I was taken aback to hear a news bulletin announcing that the Constitutional Council (CC), had met and made certain decisions. Thoroughly disappointed that the Government could not at least, institute the CC before Parliament was dissolved, I had reconciled myself to the belief that a rejuvenated new Parliament would create a model CC soon after it came into existence.


In my letter published in the Island of June 16, under the title, "Stop bickering! Abolish ‘Manape’ and quit!" I commented, "There is yet another step that has to be taken before dissolution of Parliament. It appears to be delayed by a hunt for ‘konduru tel’ for a medication that does not exist. That pertains to the appointment of the Constitutional Council that has been created with relentless effort through the 19th Amendment.


Why create a CC to lie by name only in the Constitution? It is puerile to argue that the places in the CC should be kept reserved for members of the next Parliament. Obviously the members who lose their seats at the next election would be replaced by their successors… No such problem surfaced when the CC was appointed under 17A. Presumably there were no undercurrents then, to upset every move of the legislature".


However, the fact that Parliament was dissolved without constituting a CC is public knowledge. Several questions arise from the post facto operation of a CC unknown to the last Parliament, before it went out of office. The first relates to the validity of appointments. The power to appoint members of the CC lies with the Parliament. Some of these members are the Speaker, the Leader of the Opposition and a member nominated by him. Another member was to be nominated by the minority parties. Although certain names suggested by these parties, were announced, none was appointed formally before the Parliament was dissolved, within the knowledge of the general public. In short, though the CC was instituted by the last Parliament, it had not been constituted before dissolution.


It is true that Article 41 (7) (a) of the 19th Amendment states, "On the dissolution of Parliament, notwithstanding the provisions of paragraph (2) of Article 64, the Speaker shall continue to hold office as a member of the Council, until a Member of Parliament is elected to be the Speaker under paragraph (1) of the aforesaid Article; (b) Notwithstanding the dissolution of Parliament, the Prime Minister and the Leader of the Opposition shall continue to hold office as members of the Council, until such time after a General Election following such dissolution, a Member of Parliament is appointed as Prime Minister or recognized as the Leader of the Opposition in Parliament as the case may be".


The Speaker and the Leader of the Opposition have become functus with the dissolution. How can the former function and the latter function and make nominations after they have gone out of office? What is the legal validity of a CC that comes into operation after they have ceased to be MPs? What is their warrant to sit in the CC after dissolution? Of course, Article 41 (7) (a) of the 19th Amendment gives the power to the Speaker and the Leader of the Opposition to "continue" to hold office as a member of the Council, after dissolution. The moot point is how these two functionaries could "continue to hold" an office that they did not hold at the dissolution of Parliament. No one can possibly continue what he had not begun.


I have no personal objection to the so called CC making decisions. A decision made in these days of indecision is a welcome spectacle. But the question is whether the body reported above to have made the decisions, was properly constituted, whether it had legal status to make them. Otherwise we will be witnessing another controversy, ending up in Courts and resulting only in waste of time, not to mention embarrassment to those whose status had been changed by a make-believe CC.


I move that our legal luminaries address their minds to this problem and resolve it conclusively, before we add one more item to our repertoire of constitutional misadventures.


Somapala Gunadheera


 
 
 
 
 
 
 
 
 
 
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