In responding to the current dysfunctional status of the Constitutional Council, the Government of Sri Lanka has stated–by way of a communique published in the media–that this is a result of the opposition leader failing to make his nomination, as required constitutionally. With the Council having ceased to function over a year ago, public administration has become erratic. Senior posts are unable to be filled, and there is a concern that even the post of the Inspector General of Police may be affected, as the incumbent will reach retirement age in October.
The government has claimed that the opposition leader was given direct reminders to make his nomination, but did not comply. This error by the opposition leader in no way absolves the Sri Lankan President’s failure to ensure that constitutional bodies are not hindered from performing their functions. This responsibility lies with the head of the government and there can be no excuse for negligence.
The 1978 Constitution of Sri Lanka is claimed to be modeled after the 1958 Constitution of France, which originated with Charles de Gaulle; this claim is made repeatedly by the government as well as the opposition. Under the 1978 Constitution the head of state is the president and the holder of this office is the chief executive. According to article 5 of the French constitution, the responsibility to ensure the observance of the constitution is with the president:
The President of the Republic shall see that the Constitution is observed. He shall ensure, by his arbitration, the proper functioning of the public authorities and the continuity of the State.
He shall be the guarantor of national independence, territorial integrity and observance of treaties.
This article suggests that the president’s primary obligations are to ensure that the Constitution is observed and that public authorities are properly functioning. Thus, in France, sole responsibility for the non-functioning of the Constitutional Council would be placed on the French president. If the country’s chief executive cannot discharge the obligations of her office, the people must hold her alone responsible for this failure.
In Sri Lanka however, it can be argued that no provision similar to article 5 of the French Constitution exists. This can be stated as a major defect of the Sri Lanka Constitution. It only defines presidential powers, but does not define the obligations of the president. For what objectives should such powers be used? What responsibility does the president have towards public authorities as well as the people in upholding the constitution? Unless the answers to these questions imply the president’s fundamental obligation to the constitution, there is no basis upon which to claim that the Sri Lankan Constitution is modeled on the French one. In fact, it would not be based on any constitutional tradition at all.
A well-known constitutional authority of his time, the late Dr Calvin R Silva claimed that the 1978 Constitution was modeled upon Jean-Bedel Bokassa of the Central African Republic. If this is indeed the case, Sri Lanka is facing a much larger problem than a failure to ensure the functioning of the Constitutional Council. If the executive president is not responsible for the observance of the constitution and the proper functioning of the public authorities, then Sri Lanka has no constitutional authority to perform these duties. With no authority legally obliged to perform such duties, the very concept of constitutionalism becomes redundant. It is this issue that civil society, including judges, lawyers and public officials should seriously review. Those lobbying for good governance and peace while ignoring this central issue are ignoring a fundamental problem of Sri Lankan politics, which will only frustrate their efforts.
Under the 17th Amendment to the Constitution, several constitutional bodies were created to ensure better performance of certain basic public authorities in the country. The most important of these new bodies was the Constitutional Council. By having the Council select appropriate persons to head Sri Lanka’s main public authorities, an attempt was made to ensure that highly qualified individuals of the highest integrity would be appointed. However, if this body itself does not function effectively, there is no possibility of other public bodies doing so. For this reason, the president’s obligation to ensure the functioning of the Constitutional Council is of great practical importance. Regardless of any failures of the opposition leader, the responsibility for the present non-functioning of the Council is the president’s. Sri Lankan citizens must urge the president to discharge this fundamental obligation with relation to upholding the constitution and ensuring the proper performance of public authorities.
