When the Constitutional Council (CC) was reinvigorated under the 19th Amendment to the Constitution in 2015, it was hailed as one of the biggest achievement of the new government.
However, the hurriedly enacted Amendment in April 2015 created serious differences between the Executive and the Constitutional Council on issues pertaining to certain appointments to top post in judiciary and public institutions.
Earlier this week, ruling party Parliamentarian Sisira Jayakody alleged that some appointments made by the CC were made due to the certain influences and political purposes and they should be reviewed. He said this at a press briefing held at the Prime Minister’s Office.
The Constitutional Council, a 10-member constitutional authority tasked with maintaining independent commissions and monitoring its affairs was established with good intention. The CC was first established in 2000 under the Seventeenth Amendment. However it was replaced by a Parliamentary Council under the 18th Amendment, and 19A reactivated it.
The problems between the CC and Executive began within a short period. One of the issues is the rejection of the name sent by the then President Maithripala Sirisena for the Appeal Court. These rejections have created a controversy on the appointment or rejection criterion adopted by the CC. Speaking in Parliament in 2018, President Sirisena said that the legitimate child (CC) he produced had been abused. “I helped the formation of the Constitutional Council and Independent Commissions with utmost good faith. 19A has elaborated on the functions, responsibilities and guidelines for those institutes. But we have not done anything in 19A,” he pointed out.
Making appointments
The former President charged that the Constitutional Council had rejected 14 names of judges nominated by him and said that they had been subjected to injustice by the rejection by the CC. “If a name of a judge is rejected by Constitutional Council or a different body, they have a right to know the reason for not giving them a promotion that they believe is rightful, given their service and experience. Even a labourer has a right to know if their legitimate promotion is not given. A judge is not an average person. Because of this matter, judges in primary courts, district courts and high courts are now frustrated. They have lost their hopes. They ask me if that will happen to them as well. Will it be necessary for them too, to go behind someone to get a promotion? Those judges starting from the primary courts have expectations for future. They work hard for them. Therefore, Hon. Speaker, as far as I know, those whose names have been rejected have a natural right to know why their names have been rejected,” the former President lamented in Parliament.
CC Chairman, Speaker Karu Jayasuriya rejected these allegations and informed the Parliament that the CC makes appointments only out of the nominations made available to the Council by the President and no other name has been included out of that. “I would like to record that there had been no untoward incident or and unjust occurred when selecting names from the lists provided to us. We do not see anything wrong there,” he said.
On December 8, 2018, the Speaker tabled a document containing the guidelines that the council should follow when approving the nominations from the President to the council for appointing persons for the posts mentioned in the Section 41 C of the Constitution and when appointing persons to the independent commissions mentioned in the Section 41 B of the Constitution. It has to be mentioned that when appointing persons for the posts those guidelines would be adhered to and due consideration would be given to their seniority, honesty, integrity and impartiality. As the Speaker pointed out, if seniority is the only yardstick then there is no need of the council to make appointments. There are instances where appointments have been made overlooking seniority.
The Speaker chairs the Constitutional Council, while Prime Minister representing the government and the Leader of the Opposition representing the opposition are ex-officio members. One MP is appointed to the council by the President. Two other MPs are appointed with the concurrence of the Prime Minister and the Opposition Leader. One more MP is appointed to the council on the agreement of other parties in Parliament. Three civil society members are appointed to the council only after their name approved by parliament.
CC members
Although, the CC members change after a parliamentary election, there is no provision to change CC members after a presidential election. Today President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa are unable to appoint their nominees to the CC. They are still represented by Mahinda Samarasinghe and Thalatha Atukorale, nominees of former President and former Prime Minister. Opposition Leader Sajith Premadasa too is in a similar predicament, as he is represented by R. Sampanthan. The members of the Constitutional Council cannot be removed and their appointments are valid until they resign from their posts.
One of the reasons attributed to inconsistency in CC decisions the fact that there are no standard guidelines to the CC members with regard to the evaluation of nominees to judiciary services or public institutions. This is a legal lacunae in the 19th Amendment.
There should be key performance indicators (KPI) and other a guidelines to ensure their impartial performances. Otherwise there could be misjudgements in appointments due to judicial temperament or attitude.
The CC is responsible of giving their recommendations for high ranking posts of government institutions such as, Chief Justice and Judges of the Supreme Court, President of the Court of Appeal and Judges of the Court of Appeal, Members of the Judicial Service Commission except its Chairman, Attorney General, Auditor General, Inspector General of Police, Parliamentary Commissioner for Administration (Ombudsman) and Secretary General of Parliament. While the CC could reject a nominee, it has no powers to recommend names to the Executive.
The Executive and the Parliament should give serious attention to the imperative need for establishment of guidelines for the members of the Constitution Council in order to prevent such issue disrupting the public institutions of national importance in future.
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