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Constitution making in bedlam
The granting of immunity to members of the Constitutional Council with regard to their decision making powers under the 17th Amendment has been justified by one highly placed Government Minister to a daily newspaper recently in severely bizarre reasoning.

The Minister who preferred (for reasons that would be made quite plain later) not to disclose his identity, was of the opinion that the Supreme Court has recently given judgments in some cases which allow busybodies to challenge appointments.

Given this situation, it was explained that the Constitutional Council will be unable to function properly if each and every decision of it is challenged.

Hence the necessity for its immunity.

It is easy to see why the originator of such an absurd justification opted to remain in the shadows even though his identity is not that difficult to disco-ver if one takes the trouble to do so.

What is, however, troubling is the easy recourse to specious arguments to justify what is clearly a defensive move by the Constitutional Council to safeguard itself from any kind of criticism.

One wonders, in the first instance, why indeed it was not disclosed as to exactly what these judgments were so that the critical observer could have made up his or her mind as to whether the limits of judicial supervision had indeed been breached.

The whole is made all the more hilarious by the fact that though we appear to think that in Sri Lanka, judicial supervision of actions of public bodies under the fundamental rights chapter has exceeded the limit, thereby necessitating a need to cut back and rein in the "unruly beast", the truth of the matter is that we lag far behind neighbouring jurisdictions such as India and even Pakistan and Bangladesh in this sense.

These jurisdictions have incorporated the concept of public interest litigation in a manner that has won admiration worldwide and their legal systems have not suffered for it. On the contrary, judges have used their powers wisely and have not allowed litigants to suffer on the one hand while discouraging frivolous litigation on the other.

The problem is not that we do not have the capa-city to do the same here.

The problem is that each time something good is sought to be accomplished, the process is thwarted by men (and women) of acknowledged intellectual capability but precious little commitment to actual transformation of the processes of governance.

Consequently we have this uneasy boxing in the shadows that rebounds to the discredit of the Wick-remesinghe administration and indeed, calls into question, the credibility of the Constitutional Council itself.

On a previous occasion, when the idea of immunity for the Constitutional Council was first mooted, this column discussed the problematic nature of such immunity and pointed out that its very concept was inimical to cardinal principles underlying the rule of law.

This week, examination of the draft amendment to the 17th Amendment conferring immunity (which incidentally has not yet consciously been made public for discussion by the Government or released to the media) substantiates all the misgivings articulated earlier.

The amendment amends Article 41H of the 17th Amendment taking out the possibility of challenging decisions, approvals, recommendations made by the Council by way of fundamental rights. Consequently, no court shall have the power or jurisdiction to entertain, hear or decide or call in question on any ground whatsoever such decisions, approvals, recommendations made by the Council which shall be final and conclusive for all purposes.

Slightly less objectionably, we also have the insertion of a new Article, namely Article 41J which prescribes that no suit or proceedings shall lie against the Council, the Chairman, a member, the Secretary or an officer of the Council in respect of anything done or omitted to be done by the same in the performance or discharge or purported performance or discharge of any duty or function conferred or assigned in terms of the Constitution or any other law.

The amendment meanwhile provides members of the Council to be paid such emoluments as may be determined by Parliament.

The emoluments paid will be charged on the Consolidated Fund and shall not be diminished during the term of office of such member.

Interestingly, any inte-rference with any decision or recommendation of the Council is made an offence and carries with it a fine not exceeding one hundred thousand rupees and/or imprisonment for a term not exceeding seven years.

Perhaps the provision that could be welcomed without any reservation whatsoever is that portion of the draft amendment which makes it mandatory for rules made by the Council in relation to the procedure and guidelines to be followed by it, to be communicated to Parliament and thereafter published in the Gazette.

The draft amendment to the 17th Amendment, as set out above, is indeed disturbing.

Writing on the issue in principle some weeks back, this column pointed out the scope of review of decisions of the Council will be considerably restricted if immunity is conferred, despite its semi political structure and the nature of its decision making.

It was emphasized that the composition of the present Council (with its preponderance of legal minds) is obviously liable to change in the times to come, while constitutional changes, once made, may not be that easy to reverse.

Statements issued, notably by the Organisation of Professional Associations (OPA) have objected to the idea of immunity and have articulated moreover the expectation that the Constitutional Council project itself with a stronger moral force than it has hitherto done.

It is a pity that the reverse appears to be taking place.

This draft amendment meanwhile jostles for priority with another amendment, this time to the office of the executive presidency itself. Which of these will be the 18th or the 19th amendment is yet a matter for conjecture.

This amendment proposes to take away the powers of the President to dissolve Parliament after the completion of one year, the setting up of a special National Committee to decide on bills (and appointments?) crucial in the national interest and allow parliamentarians to use his or her vote in accordance with his or her conscience on the same without fear of expulsion.

As far as the United Front Government is concerned, there is an immediate and very real responsibility to place these two Constitution amendment bills before the public with time for discussion.

In the breach of this obligation, it will only be embarking on a very slippery slope that its predecessors once trod.

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